Boahemaa v Kotey and Others (C1/172/2022) [2024] GHAHC 550 (31 October 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD IN SUNYANI, BONO REGION ON THURSDAY THE 31ST DAY OF OCTOBER 2024 BEFORE HER LADYSHIP JUSTICE JOYCE BOAHEN, JUSTICE OF THE HIGH COURT SUITNO. C1/172/2022 JULIANA BOAHEMAA PLAINTIFF VS. BENJAMINKOTEY&2OTHERS DEFENDANTS JUDGMENT SUBMISSIONOF NOCASE TOANSWERINA CIVILTRIAL Parties absent Glenna – Lois Boakye Yiadom holding brief of Samuel Nyamekye Vasco for the Plaintiff MosesKofiObahfor the Defendantsabsent 1 BACKGROUND On 30th May, 2022 the Plaintiff issued a writ of summons claiming the following reliefs against theDefendants; a) A declaration that felling / or cutting of the Plaintiff’s one hundred and eighty seven (187) mature cashew trees on a parcel of land lying and situate at “Akonkonte” Dumase on Nkoranza stool land at the instance of the Defendants without the consent and authority of the Plaintiff is wrongful, unlawfuland constitutestrespass. b) An order of the honourable Court declaring the Plaintiff entitled to, and compelling the Defendants to pay the Plaintiff, the sum of Ghs 687, 500.00, being the proceeds / revenue for fifty five (55) bags of cashew nuts per year for twenty-five (25) years, at Five Hundred Ghana Cedis (Ghs 500.00) per bag to be accrued from the Plaintiff’s cashew trees for the remaining economic life –spanwhich revenue willbe denied. c) Interest on the sum of relief (b) above fromthe 14th day of July 2021 till date of final payment d) Generaldamagesfortrespass 2 In their statement of defence filed on 24th June, 2022 the Defendants denied the Plaintiff’s claims against them claiming that the Plaintiff is not entitled to her reliefs indorsed onthe writ ofsummons. The Plaintiff mounted the witness box, called two witnesses and closed her case on 24th January, 2024. With leave of the Court Counsel for Defendants filed submission of no case to answer by the Defendants. Before filing the submission of no case to answer, the Defendants per their Counsel elected not to open their defence even if the Court rules on the submission of no case to answer against them. The Court delivered its ruling on 16th July, 2024 and held that the Plaintiff established a prima facie case against the Defendants but because the Defendants elected not to open their defence even if the submission of no case to answer isdeterminedagainst them, the Courtadjourned the matter for judgment. PLAINTIFF’S CASE The Plaintiff’s evidence is that she is a farmer and lives in Akonkonto Dumase Nkoranza. Her case is that she cultivated a 5.58 acre cashew farm the subject matter ofdispute with her deceased husband onAkonkontiDumase stool land in Nkoranza in the year 2000. In the year 2004, the cashew matured and bore fruits and were harvested. The said farm shares boundary with the 1st Defendant’s mango farm and other boundary owners of her farm are Ama Badu, Joab Ofori and Martin Kru. According to the Plaintiff when her husband died in the year 2013, his family gave the entire farm to her to continue to cultivate for her subsistence and the subsistence of seven children she had with her deceased husband. She enjoyed quiet possession 3 of the said farm until 14th July, 2021 when she found that the Defendants cut her entire cashew trees deliberately to prevent insects from her cashew farm from entering the 1st Defendant’s mango farm to destroy his mango fruits during the mango season. She reported the case to the police at Busunya and after investigations, the 2nd and 3rd Defendants were arraigned in the District Court Nkoranza. The Defendants were found guilty and sentenced to pay a fine of eighty (80)penalty unitsand onehundred (100)penalty units respectively. After the Court delivered judgment, the Defendants offered to give her Ghs 9,000.00 as compensation for destroying her cashew farm. She rejected the offer because the money was insufficient considering the nature of damage caused to her farm. The farm is her only source of livelihood and that ofher seven children. Since the cashew trees were destroyed life has been very difficult for her. Her efforts for the Defendants to pay her for the cost of the trees that were destroyed proved futile and the Defendants told her to come to Court. She tendered three photographs exhibit “A” series to show some of the cashew trees that were cut and exhibit “B” the judgment of the District Court Nkoranza to support her case. She attached a report by an Agricultural Extension Officer conducted on her farm and intimated to the Court when she mounted the witness box that she would subpoena the Agricultural Extension officer but she failed to do so and she did not tender the document in evidence. 4 Under cross – examination the Plaintiff responded to questions put to her by CounselforDefendants on17th March, 2024as follows; Q. The name that appears on your Writ as Defendant is different from the name that appears on your exhibit“B”.Iputitto you? A. My Lady, please their names Idon’treally know theirnames. Q.In terms of your writ of summons and exhibit “B” reference is being made to two different people. A. That is why I said that I don’t know the names very well. They mentioned their names themselvesto be written. The Plaintiff claimed her entire cashew trees on the farm were one hundred and eighty seven (187) and after the trees were destroyed about twenty trees remained and in another breath, she said none of the trees remained. She also stated in one breath that the size of her cashew farm is 5.58 acres and in another breath, she said the size of her farm is 5.5 acres. The Plaintiff further responded to questions under cross–examinationon17th March, 2024asfollows; Q. When you sent the matter to the Nkoranza Court, the order that was made for the paymentof money was inrespectof quantity of trees that were cut. Is that notso? A. My Lady they didnot saythe accused personsshould pay me any money. Q. In exhibit “B” it has been stated by the Court that; “The accused are also ordered to pay for the said 90cashewtrees cutdown” 5 A. That isnot true Q. The Court arrived at 90 cashew trees because that was the figure you gave to the investigator when you lodged the complaintwith the police A. That isnot true Q.What isthe size of your farm? A. It’s 5.5acres The Plaintiff claimed under cross – examination that she saw the 2nd and 3rd Defendants felling the cashew treesonher farm. EVIDENCE OF PW1 PW1 is a brother to the deceased husband of the Plaintiff. He testified that his deceased brother and the Plaintiff cultivated the cashew farm the subject matter of dispute at Akonkonti Dumase on Nkoranza stool land belonging to his family around the year 2004 during the lifetime of his brother. According to PW1, the Defendants’ mango plantation shares a common boundary with the Plaintiff’s cashew farm. His brother died in the year 2013 and he had seven children with the Plaintiff. After his brother died in the year 2013, his family gave the cashew farm, which the Plaintiff jointly cultivated with her deceased husband to the Plaintiff to cultivate for her subsistence and the subsistence of the seven children of the marriage. The cashew farm became the Plaintiff’s source of income and livelihood formaintaining herself andthe children ofthe marriage. 6 Some months ago, he received a telephone call that someone was cutting the cashew trees on the Plaintiff’s farm. In the company of some of the Plaintiff’s relatives, they went to the farm and found that the Defendants had cut almost the entire cashew trees on the farm into pieces. He joined the Plaintiff to lodge a complaint with the police at Busunya. The police arrested the 2nd and 3rd Defendants, charged them and arraigned them before the District Court Nkoranza. The Court found them guilty and sentenced them to pay fines. The Plaintiff petitioned the Commission onHuman Rights and Administrative Justice (CHRAJ) Busunya for compensation from the Defendants. CHRAJ investigated the case and recommended that based on the report from the Ministry of Agriculture the Defendants should pay an amount of Ghs 687,500.00 to the Plaintiff. Before the Plaintiff petitioned CHRAJ, the Defendants in his presence invited the Plaintiff to Big Joe Hotel Nkoranza and offered the Plaintiff Nine Thousand Ghana Cedis (Ghs 9,000.00) as compensation for destroying her cashew farm but the Plaintiff declined the offer because it was insufficient. The Plaintiff mounted this suit because of the Defendants’ failure to compensate her. He stated under cross – examination that the 2nd Defendant hired an operator, the 3rd Defendant to fell the trees and that he obtained this information when he went to the farm and found the operator onthe farm. Inone breath he said the size ofthe farm is five and half (5.5)acresand in anotherbreathsaid the farmis ten(10)acres. 7 EVIDENCE OF PW2 PW2 is the Plaintiff’s current husband and lives in Akonkonte Dumase. He knows the cashew farm the subject matter of dispute belongs to the Plaintiff. The Plaintiff received a phone call some months ago that the Defendants were on her cashew farm cutting her cashew trees into pieces. He mobilized some men and women including PW1 and the Plaintiff’s relatives to the farm. At the farm, they saw almost the entire cashew trees on the farm cut into pieces but nobody was on the farm. Their investigations revealed that the Defendants whose mango farm shares common boundary with the Plaintiff’s farm destroyed the Plaintiff’s cashew trees. The next day they confronted the 2nd and 3rd Defendants who were on the Plaintiff’s farm cutting the cashew trees. The Defendants admitted that the 1st Defendant asked them to cut the cashew trees on the Plaintiff’s farm to prevent insects from the cashew farmfromentering their mango plantation to destroy their mango fruits. The Plaintiff reported the matter to the police at Busunya. The police arraigned the Defendants in Court and they were found guilty, convicted and sentenced to pay fines. The Defendants invited the Plaintiff to Big Joe Hotel at Nkoranza and offered to compensate her with Ghs 9,000.00, but the Plaintiff declined the offer because it was not sufficient. Thereafter, the Defendants went to sleep without taking any step to compensate the Plaintiff. The Plaintiff petitioned CHRAJ Busunya to demand 8 compensation from the Defendants and based on a report from the Ministry of Food and Agriculture (MoFA) on the cashew trees that were cut, CHRAJ recommended that the Defendants pay monetary compensation to the Plaintiff but the Defendants failed to comply which caused the Plaintiff to mount this suit. According to PW2 the first time they went to the farm when the Plaintiff received a phone call that someone was cutting her cashew trees they did not see anyone on the farm. The next day they went to the farm, they saw the operator Mohammed Ali the 3rd Defendant cuttingthe trees and the police stopped him. DEFENDANTS’ DEFENCE In their statement of defence filed by the 2nd Defendant for himself and on behalf of the 1st and 3rd Defendants on 24th June, 2022, the 2nd Defendant stated that he is a farmer and he knows the Plaintiff only in respect of this suit. That the 2nd Defendant is the caretaker of the 1st Defendant, the 3rd Defendant is a Chainsaw Operator and they both live in Akonkonti Dumase. They averred that the 1st Defendant owns a mango plantation at Akonkonte Dumase on Nkoranza Stool land but the farm does not share boundary with the Plaintiff’s cashew farm. They denied virtually all the averments in the Plaintiff’s statement of claim including the Plaintiff’s claim that she lodged a complaint about their destruction of her cashew trees with the police. The 2nd Defendant denied that the police arrested him and the 3rd Defendants, arraigned them in the District Court Nkoranza and they were convicted and sentenced. The 2nd Defendant averred that sometime ago the 1st Defendant asked him to engage a 9 chainsaw operator to fell some trees on his land at Dumase and he engaged the 3rd Defendant for that purpose. The 3rd Defendant fell trees on the 1st Defendant’s farm and not trees on the Plaintiff’s farm. The Defendants averred that they are not liable to the Plaintiff for her claims against them. They filed witness statement but did not mount thewitness box totestify. SUBMISSIONOF NO CASE TOANSWERBYTHE DEFENDANTS Counsel for the Defendants submitted that the Plaintiff’s case is that she inherited about 5.58 acres of cashew farm cultivated in the year 2000 from her late husband. That sometime in the year 2021 the Defendants destroyed the entire cashew farm by cutting all her one hundred and eighty seven (187) cashew trees into pieces with a chain saw machine. The Plaintiff tendered pictures of the destroyed cashew trees and judgement dated 14th December, 2021 from the District Court Nkoranza. She called two witnesses to prove her case. The Defendants denied the Plaintiff’s case in their statement of defence and stated that the Plaintiff is not entitled to her reliefs soughtas indorsed onher writ ofsummons. Counsel cited authorities on the burden of proof namely Section 11 (4) and (12) of the Evidence Act and noted that based on issues set down for trial, the Plaintiff must prove that the Defendants cut her one hundred and eighty seven (187) cashew trees at the estimated value of the trees. Counsel contends that the Plaintiff failed to lead sufficient evidence to prove her case at the close of her case and argued that the Plaintiff’s evidence and the evidence of her witnesses put together are manifestly 10 vague and unreliable that no liability can be sustained on it. It will therefore be unfair and atravestyofjustice tocall onthe Defendants toopentheir defence. Addressing the issue as to whether or not the cashew trees destroyed by the Defendants were the bonafide property of the Plaintiff and whether or not the Defendants destroyed one hundred and eighty seven (187) cashew trees on the Plaintiff’s farm, Counsel submitted that the Plaintiff tendered photographs exhibit “A” series, which failed to show that one hundred and eighty seven (187) trees were fell. Exhibit “A” showed only three trees. The photographs did not show the Defendant’s faces neither did it show the Defendants felling the trees. The photographs did not show the faces of the Plaintiff and her witnesses. The witnesses of the Plaintiff led evidence that they saw the 2nd and 3rd Defendants felling the cashew trees but the photographs the Plaintiff tendered did not support their evidence. Counsel contends that the evidence of the Plaintiff and her witnesses were insufficient regarding the one hundred and eighty seven (187) cashew trees. The evidence of the Plaintiff and her witnesses is tainted with inconsistencies on whether twenty (20) cashew trees were left on the Plaintiff’s farm and whether the Plaintiff’s witnesses saw the2nd and 3rd Defendants felling the trees. Counsel argued that the Plaintiff claims she cultivated one hundred and eighty seven (187) cashew trees on a 5.58 acre farm the same day in the year 2000 and from then to date all the cashew trees planted survived and produced fruits for over twenty (20) years as at the time the trees were cut. Counsel submitted that the 11 evidence of the Plaintiff and her witnesses were inconsistent on the acreage of her farm and who cultivated the farm. Counsel contends that from the Plaintiff’s own evidence, she could not tell the number of cashew trees on her farm and she could not identify any of the Defendants in the photographs she tendered to support her case. Counsel submitted that from the evidence of the Plaintiff and her witnesses, none of them measured the farm nor counted the trees that were fell on the farm before the Plaintiff instituted this action against the Defendants. While the Plaintiff says her farm measures 5.5 acres, PW1 testified that the farm measures ten (10) acres and the cashew treeswere cultivated onthewhole tenacres. Counsel cited the case of Nii Narh Dwonoma II vs. Addokwei Tetteh Olewolon and 3 Others, Civil Appeal No.4/14/2005 (21 June 2006). The Court held that whenever the testimony of a party on a crucial issue conflicts with the testimony of his own witness on that issue it was not open to a trial Court to gloss over such conflict to make a specific finding on that issue in favour of the party whose case contained the conflicting evidence on the issue. If one hundred and eighty seven (187) trees were fell on the Plaintiff’s farm, the Plaintiff could have produced a pictorial view of more than three trees. From exhibit “’A” series that the Plaintiff tendered there is nothing to show that the Plaintiff owns the farm and that the farm had one hundred and eighty seven (187) trees on it. According to Counsel, the photographs are random photographsofsome treesthatwere fell, which donot prove thePlaintiff’scase. 12 Counsel argued that since the Plaintiff did not produce pictorial evidence to show that one hundred and eighty seven (187) cashew trees were fell the Court may hold that the Plaintiff failed to prove that she had one hundred and eighty seven (187) trees on the farm. The Plaintiff tendered exhibit “B” judgment dated 14th December, 2021 which claimed that an Agricultural Extension Officer assessed that ninety (90) trees were cut down allegedly by the second Defendant. According to Counsel, the judgment ordered the 2nd Defendant to pay for the ninety (90) cashew trees at a cost assessed by the Agricultural Extension Officer. The ninety (90) trees according to Counsel contradicts the Plaintiff’s entire claims and the said judgement has no bearing on this case because it does not mention any of the names of the Defendants neither does it capture the said trees the Plaintiff claims the Defendants fell. Counsel submitted that upon the Plaintiff’s failure to prove that one hundred and eighty seven (187) of her cashew trees were fell, her claim that one hundred and eighty seven (187) trees produced fifty five (55) bags of cashew per year should also fail. Counsel contends that upon the Plaintiff’s failure to subpoena the Agricultural Extension officer to prove the average lifespan of the Plaintiff’s cashew trees in order to quantify any alleged destruction, the Plaintiff therefore failed to prove the other issues set down for trial and her case therefore fails. The Plaintiff and her witnesses according to Counsel testified that they did not see the 1st and 2nd Defendants felling any trees so their testimony about seeing the 3rd Defendant fell the Plaintiff’s trees arecontradictoryraising serious questions oftheir credibility. 13 Counsel argued that the Plaintiff failed woefully to prove the life span of her cashew trees, the age of her cashew trees, the number of cashew trees on her farm or the bags of cashew nuts harvested yearly on her farm. The Plaintiff attached a “Report on Damage to Mad Juliana Boahemaa 5.58 Acres Cashew Plantation at Odumase” allegedly signed by one Mr. Opoku Stephen claiming to be an Agricultural Extension Agent at Odumase Operational Area. She did not tender the said report neither did she subpoena the said officer. Counsel prayed the Court not to put any weight on the said document and relied onthe cases ofMajolagbe vs. Larbi & Others [1959] Ghana Law Report (GLR) 190 and T. K. Serbeh and Company Limited vs. Mensah [2005-2006] Supreme Court of Ghana Law Report (SCGLR) 341 at 360-361 and reiterated the fact that proof in law is not about mounting the witness box, taking an oath and repeating ones averments in ones pleadings. It is about producing evidence of facts and circumstances, documents etc. to prove ones case. However, inthe Plaintiff’scase she woefully failed toprove hercase. Counsel contends that it is not the duty of the Defendants to open their defence to fill in gaps in the Plaintiff‘s case and that this is a proper case for the Court to dismiss the Plaintiff’s action because it lacks merit. Counsel cited the case of John Dramani Mahama vs. Electoral Commission and Nana Addo Dankwa Akuffo -Addo Suit No. J1/5/2021 dated 4th March2021which held that; “The Defendant or Respondent may elect to openhis defence and call witnesses if he so wishes. Secondly, the Defendant or Respondent may elect to rest his case on the 14 Plaintiff’s or the Petitioner’s, when he is of the view that the case of the Plaintiff or Petitioner is weak and has failed to raise a prima facie case to warrant the defence to answer. Lastly, the Defendant or Respondent may elect to make a no case submission where - upon he may be put to an election by a trial Judge. This no case submissionis tothe effect that evenif the whole ofthe evidence ledby the Plaintiff is admittedthere is no prima facie case made outby the Plaintiff orthe Petitioner.” Counsel cited the case of Ansah vs. Ghartey [1982-83] GLR 1189 at page 1195 which held that after the Plaintiff closes his case the Defendant’s Counsel must make up his mind whether to submit no case to answer or not. He will ordinarily not be allowed to make a submission of no case unless he tells the Judge that he intends to rely on the submission alone and will call no evidence. If Counsel for the Defendants adopts this course, Counsel for Plaintiff will be entitled to reply to Counsel for Defendant’s submission. If the Judge overrules the submission, judgement will be entered for the Plaintiff. Counsel referred copiously to Justice S. A Brobbey’s book; “Practice and Procedure in the Trial Courts and Tribunals of Ghana (2nd Edition) at pages 354 and 355” on the subjectasfollows; “A defendant to a civil suit can make a submission of no case to answer after the close of the Plaintiff’s case. When a submission of no case is made, the practice is to require the defendant toelect whether or notto callevidence before a ruling is given. It would appear that if the defendant is put to his election and he formally announces that he 15 will lead no evidence, a ruling or judgement may be given against him if his submission fails, just like a defendant who abandons a suit after the Plaintiff has successfully proved his case. Where the defendant elects to call evidence, detailed judgement or ruling with reasons must be given only after he has put his side of the case before the court, should his submission fail. If he is not put to his election at all, he can still give his evidence asif no submissionhad beenmade. Ifaprima facie case has beenmade, the defendant should be called to make his defence if he has been put to his election and he has announced that he would lead evidence, should his submission fail. It is improper todismiss the defendant‘s actionin sucha situationif his submission fails”. Based on the above considerations Counsel for Defendants prayed the Court that upon the Plaintiff failing to prove her case the Court may dismiss the Plaintiff’s case onthe ground ofsubmissionofno case toanswer bythe Defendants. COUNSEL FORPLAINTIFF’SSUBMISSION Counsel for Plaintiff in response to submission of no case to answer filed by Counsel for Defendants for and on behalf of the Defendants cited a number of authorities on the burden of proof including Sections 10 (1), 11 (4), 12 (1) and (2) of the Evidence Act, 1975 (NRCD 323). He further cited the cases of Adwubeng vs. Domfeh [1996- 1997] SCGLR 660, SSNIT vs. Abotare Ye Chop Bar (2018) 120 Ghana Monthly Judgment (G.M.J) 190 among others. Counsel submitted that the Plaintiff led cogent evidence to establish her ownership of the cashew farm by establishing her root of 16 title. The plaintiff and her witnesses further established that the Defendants cut the cashew trees and the Plaintiff caused their arrest. The Defendants were to pay compensation to the Plaintiff but they failed to comply. According to Counsel, the Defendants must answer the question, whether they appeared before the District Court Nkoranza and they were convicted for cutting the Plaintiff’s cashew trees since the Plaintiff came to Court because the compensation the District Court awarded herwas not sufficient. According to Counsel, the Plaintiff and her witnesses testified that they met the 2nd and 3rd Defendants on the Plaintiff’s farm felling cashew trees. They further testified that the 1st Defendant approached the Plaintiff and offered to compensate her but he failed to comply. Counsel cited the case of Tatiana Boya vs. Mario De Cataldo and Cottage Italia Industries Limited TLP – SC-2924 -80 [2014] JDLCA 2789 in which case the Court expressed the view that submission of no case to answer in civil cases should be avoided. Instead, a partyshould file application under Order11 rule 18(1) of C.I 47 to have the action dismissed because the pleadings do not disclose a reasonable cause of action. Counsel contends that the Defendants woefully failed to establish a submission of no case to answer against the Plaintiff and therefore the Court should not uphold their submission. Counsel prayed the Court to dismiss Counsel for Defendants’ submission and call upon the Defendants to open their defence toestablish whether they appeared beforethe District CourtNkoranza at the instance ofthe Plaintiff. 17 EVALUATIONOF THE FACTS,EVIDENCE ANDAPPLICATIONOF THELAW This is a case of submission of no case to answer in civil trials and I must admit that authorities on the subject is limited. It is instructive to note that the Defendants filed pleadings and witness statements in this case. However, at the close of the Plaintiff’s case, they elected not to give evidence and their Counsel prayed the Court for leave to file submission of no case to answer. Counsel for Defendants elected on behalf of the Defendants that even if the submission of no case to answer goes against the Defendants they would not mount the witness box to testify. The Court ruled that based on the evidence proffered by the Plaintiff and her witnesses, the Plaintiff established a prima facie case against the Defendants and adjourned the matter for judgment. In the case of Armah v. Hydrofoam Estates (Ghana) Limited [2013 -2014] 2 Supreme Courtof Ghana LawReport(SCGLR) 1551at 1567theCourtheld that; A court has no duty to call upon any party to testify in the case, the court acts as an umpire and only hears such evidence as the parties will proffer; whether the parties will testify or not is none of the court’s business. Indeed, for a court to insist that a party should testify would amount to the judge descending into the arena of conflict. After determining the triable issue/s, the trial courtleaves the field clear for the parties themselves todecidewho will testify. We know of no law or rule which entitles a court to call upon a party to testify in the action. If such a law or rule does exist we would venture to say that it is inapplicable under our legal dispensation. 18 Inthe case of John Dramani Mahama vs. Electoral Commission and Another, [2021] Ghana Supreme Court (GHASC) 1 (4 March 2021), at the close of the Petitioner’s case the Respondents elected not to testify. They relied on Order 38 rule 3E (5) of the High Court (Civil Procedure) Rules, 2004 (C.I 47) among others which the Court adopted to regulate the trial. The Respondents prayed the Court to decide the issues before it on the strength of the oral and documentary evidence led by the Petitioner through his witnesses. The Petitioner opposed the Respondent’s resolve vehemently and insisted that the first Respondent should be called upon to testify for her to be cross – examined. The Supreme Court held that the position of the law is that after the close of the Plaintiff or Petitioner’s case, a Defendant or Respondent has three optionsopened tohim. “Firstly, the Defendant or Respondent may elect to open his defence and call witnesses if he so wishes. Secondly, the Defendant or Respondent may elect to rest his case on the Plaintiff’s or Petitioner’s , when he is of the view that the case of the plaintiff or Petitioner is weak and has failed to raise a prima facie case to warrant the defence to answer. Lastly, the Defendant or Respondent may elect to make a no case submission where – upon he may be put to an election by a trial judge. This no case submission is to the effect that even if the whole of the evidence led by the Plaintiff is admitted there is no prima facie case made out by the Plaintiff or Petitioner”. The Defendants in the present case chose the third option and elected to make a submission of no case to answer. From the Armah v. Hydrofoam Estate case cited 19 supra the Court has no duty as an independent arbiter to call upon any party to testify in a case. Whether a party will testify or not is none of the court’s business. Therefore, in order not to descend into the arena of conflict the Court accepted the Defendants’ election. S. Kwami Tetteh at page 835 of his book, Civil Procedure A PracticalApproach statesas follows; At the close of the plaintiff’s case the defendant may submit that the defendant has no case to answer because the evidence adduced by the plaintiff does not suffice to establish the claim. If counsel does not exercise the option to make the submission and the matter proceeds to judgment, counsel cannot complain on appeal. A defendant who opts to make the submission may be put to the election to stand or to fall by the submission. If the defendant accepts the option, an adverse ruling on the submission would bring the case to a close unless the judge otherwise directs. Where the basis of the submission is that the evidence adduced by the Plaintiff does not establish a case the defendant will be bound by the election and cannot open the defence. Anewtrial will notbe ordered evenif the ruling were upseton appeal. Where the submission is that the evidence adduced by the plaintiff is unsatisfactory or unreliable for the discharge of the burden of proof the appellate court may determine the submission and may remitthe matter for retrial despite the election. It is essential to put the defendant on election. Submission of no case is rare, not in vogue. A defendant who takes the view that the plaintiff’s evidence does not establish the claim may offer to call no evidence. Ofori Boateng has suggested in his book, Evidence that the Evidence Act, 1975(NRCD 323) has discontinuedthe practice. 20 In the case of Tatiana Boya vs. Mario De Cataldo and Cottage Italia Industries Limited J4/41/2015 [2024] Ghana Supreme Court (GHASC) 1 (13 March 2024) at Page8the Courtheld that; It is again worth reiterating that the incidence of proof in all civil matters generally lies with “he who alleges”. In this case however, the 1st Defendant opted to make a submission of no case and therefore, didnot lead any evidence by himself or through any person to substantiate averments that would have otherwise required proof in law. We further note that by settled practice and the law, the 1st Defendant was within his right to make a submission of no case and elect not to testify. Having so opted, no Court could have compelled him to do otherwise buttoassess the case on the strength of the evidence sofar adduced. At page 84 of the Annotated High Court (Civil Procedure) Rules, 2004 (C.I 47) by Kwamina Mensah it is stated asfollows; The fact that the practice or procedure of submission of no case to answer is not expressly provided for in C.I 47 or that it is rarely invoked in the civil action does not mean that a party in civil litigation cannot invoke it or does a trial judge will have no jurisdiction to entertain it…It is to be emphasized that the practice of a submission of no case exists in the adjudication of civilactions both incommon lawjurisdictionssuch as Englandand Ghana. In an Online Article titled; Petition at Your Peril: No Case to Answer in Civil Actions Minter Ellison LLP Hong Kong January 10, 2024, this is what the writer had tosay onthe abovesubject; 21 “The submission of “no case to answer” can be made in both criminal and civil trials. The rules are, however, different in these two types of trial….However, one must exercise caution in making the same submission in a civil trial – the judge may ask the counsel to “elect” upon a submission of no case to answer. This means that unless counsel confirms that he will stand by his submission and call no evidence even if the judge rules against him, the judge will not entertain such a submission. This is why submission of no case to answer is rare in civil litigation, let alone in winding - up or unfair prejudice actions….A submission of no caseto answer in the contextof acivil trial can be made on two grounds; (i)Where the Plaintiff’s case, even accepting it at its face value, does not disclose a sustainable causeof action inlaw; or (ii)The quality of the evidence given by the plaintiff is such that there is not even a prima faciecase for the defendantto answer “Further, the Court also has to consider if the claim has no prospect of success and it would be a waste of time and costs to hear the defendant’s evidence. Once a defendant elects to make a no case to answer submission, he so elects to call no evidence. If however, The Court finds there is acase to answer from the plaintiff, it will proceed to rule, on abalance of probabilities, whether the plaintiff’s case is made out having regard to the plaintiff’s evidence (including that given under cross – examination) and the available documentary evidence, but without regard to the defendant’s witness statement”. In the light of the authorities cited above and in view of the Defendant’s election not to give evidence even if the submission of no case to answer goes against them the 22 Court hereby proceeds to discuss the issues set down for trial solely on evidence adduced by the Plaintiff and her witnesses including their respective cross – examination. Application for directions was taken by the Court differently constituted on 8th March, 2023 and the following issues were set down for trial. Although the Court is aware that per the Armah v. Hydrofoam case cited supra it is not bound by the issues set down for trial by the parties, it would discuss the issues as set down for trial without any variation in order not to miss out relevant aspects ofthe issues. ISSUE(a) Whether or not the cashew farm/trees destroyed by the defendants were the bonafide propertyoftheplaintiff. On this issue, the Plaintiff and PW1 were consistent that the Plaintiff got married to PW1’s brother and during the life time of PW1’s brother he cultivated the cashew farm the subject matter of this case jointly with the Plaintiff in the year 2000. PW1 confirmed that the land situate at Akonkonte Dumase on Nkoranza stool land belongs to his family. When the Plaintiff’s husband died in the year 2013 the family gave the land to the Plaintiff to cultivate to cater for herself and the seven children of the marriage. Since 2013 until when the cashew trees were destroyed the farm has been the Plaintiff’s source of income. She has occupied this land all over the years without any interference. She established that her farm shares boundary with the Defendant’s farm and she described her boundary owners. Counsel for Defendants 23 merely disputed the Plaintiff’s ownership of the farm without the Defendants mounting the witness box to challenge the Plaintiff’s claim of ownership of the farm. It is useful to add that there were inconsistencies about the acreage of the farm/land as given by the Plaintiff and PW1. The Plaintiff said in one breath that the farm is 5.58acresandinanother breathfive and half (5.5)acres. PW1 said five and half (5.5) acres in one breath and ten (10) acres in another breath. Despite the inconsistencies about the acreage of the farm by the Plaintiff and PW1 the Court would not dwell onthe said inconsistencies to disbelieve their evidence. In the case of Effisah vs. Ansah [2005 – 2006] SCGLR 943 the Supreme Court held in holding (6)as follows; “In the real world, evidence led at any trial which turned principally on issues of fact, and involving a fair number of witnesses, would not be entirely free from inconsistencies, conflicts or contradictions and the like. In evaluating evidence led at a trial, the presence of such matters per se, should not justify a wholesale rejection of the evidence to which they might relate. Thus, in any given case, minor, immaterial, insignificant or non-critical inconsistencies must not be dwelt upon to deny justice to a party who had substantially discharged his or her burden of persuasion. Where inconsistencies or conflicts in the evidence were clearly reconcilable and there was a critical mass of evidence or corroborative evidence on crucialor vital matters, the courtwould be rightto gloss over those inconsistencies…” In the Court’s considered view since the Plaintiff’s witness corroborated her evidence about her ownership of the farm, notwithstanding the inconsistencies the 24 Court is convinced that the Plaintiff established her burden of proof regarding her ownership of the farm. She established her root of title, her boundary owners and her acts of possession on the land. Therefore in the absence of any contrary view proved to the Court’s satisfaction by the Defendants the Court concludes that the cashew farm and trees that were destroyed on the farm situate at Akonkonte Dumase onNkoranza stoolland in July 2021is thebonafide property ofthePlaintiff. To establish whether the Defendants were the ones who destroyed the cashew trees on the Plaintiff’s farm the Plaintiff and her witnesses in their evidence testified that when they received phone calls about the cashew trees being destroyed and they went to the farm they initially did not see anyone. Later when they went to the farm with the policeman they found the 2nd and 3rd Defendants on the land. The 3rd Defendant told them that he was engaged by the 2nd Defendant to cut the trees. The 2nd Defendant who is caretaker of the 1st Defendant’s farm told the Plaintiff and her witnesses that the 1st Defendant asked him to engage the 3rd Defendant to cut the trees. The Plaintiff’s case is that her further investigations showed that the Defendants deliberately cut down the trees to prevent insects from her farm from entering the 1st Defendant’s farm to destroy his mango fruits during the mango season. The Plaintiff took criminal action against the 2nd and 3rd Defendants and lodgedacomplaint with thepolice atBusunya. The 2nd and 3rd Defendants were arraigned in the District Court Nkoranza and they were convicted and found guilty of destroying the Plaintiff’s cashew trees. The 25 Court sentenced the 2nd and 3rd Defendants to pay fines of eighty (80) penalty units and one hundred (100) penalty units respectively and they were further ordered to pay for the value of ninety (90) cashew trees as assessed by the Agricultural Extension Officer in Busunya. The Plaintiff and her witnesses were consistent that the 1st Defendant invited the Plaintiff to Big Joe Hotel at Nkoranza and offered to pay her compensation of Ghs 9,000.00 which the Plaintiff rejected because it was insufficient. Inthe light of the foregoing, and in the absence ofany contrary evidence by the Defendants, the Court is convinced that upon the instruction of the 1st Defendant the 2nd Defendant engaged the 3rd Defendant to cut the cashew trees on the Plaintiff’s farm to prevent insects from the Plaintiff’s farm from entering the 1st Defendant’s farm to destroy the 1st Defendants’ mango fruits during the mango season. ISSUE(b) Whether or not the Plaintiff has been harvesting fifty five (55) bags of cashew nuts yearlyfromthefarm. From the evidence adduced by the Plaintiff and her witnesses, she could not prove this claim. The Plaintiff merely stated that she harvests fifty five (55) bags of cashew nuts per year at Ghs 500.00 per bag. She did not lead further evidence to convince the Court about this assertion. Unfortunately, for her, her witnesses did not lead any evidence to buttress her assertion. The Plaintiff attached a report to her witness statement with the title; “Report on damage to madam Juliana Boahemaa (sic) 5.58 26 acres cashew plantation at Odumase” and marked it as exhibit “B” but she did not tender it as an exhibit. The report is alleged to have been authored by an Agricultural Extension officer but the Plaintiff did not call him to tender the document as an exhibit for him to be cross – examined on it and for the Court to consider it. The Court can therefore not accept a harvest of 55 bags of cashew per year without further evidence to convince it that the Plaintiff’s claim is true. The Court is of the view that the Plaintiff failed to establish that she harvests fifty five (55) bagsofcashew per yearfromher cashew farm. Sections10(1) and 11(1)and (4) of the Evidence Act, 1975(NRCD 323)statesthat; 10.Burden ofpersuasion defined (1)For the purposes of this Act, the burdenof persuasion meansthe obligation of a party to establish arequisite degreeof beliefconcerninga factinthe mind of the tribunal of factor the Court. 11.Burden ofproducing evidence defined (1)For the purposes of this Act, the burdenof producing evidence means the obligation of a party to introducesufficientevidence to avoid a ruling on the issue (4)In other circumstancesthe burdenof producing evidence requiresaparty to produce sufficientevidence whichon the totality of the evidence, leads a reasonable mindto conclude that the existenceof the fact was more probable than its non-existence. 27 Majolagbe & Others vs Larbi & Others 1959 Ghana Law Report (GLR) 190 – 195 statesas 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, e.g. 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 Courtcan be satisfiedthat what he avers is true.” In the light of the above authorities, the Court holds the view that the Plaintiff could not proffer sufficient evidence to satisfy the Court that she harvests fifty five (55) bags of cashew every year but that is not to say that she does not harvest any bags of cashew at allper year. ISSUE(c), (d) and (e) (c)Whether or not the defendants herein destroyed 187 cashew trees of the plaintiff in herfarm. (d)Whether ornot thematurity, averagelife span ofcashew trees is 45years. (e)Whether or not the plaintiff’s cashew trees were 20 years old as at the time that theplaintiff(sic) destroyedsame. The Court will discuss the three issues together. The Plaintiff and her two witnesses led evidence and claimed that the 2nd Defendant upon the instruction of the 1st 28 Defendant engaged the 3rd Defendant a chainsaw operator to cut almost all the Plaintiff’s cashew trees on her cashew farm. Their evidence could not establish how many trees were on the farm before they were cut. The Plaintiff in one instance said all the one hundred and eighty seven (187) trees were cut. In another instance, she said twenty trees were left and she was not even sure about it. PW1 claimed five and half (5.5) acres planted with cashew trees were destroyed and in another breath said the whole farm was ten (10) acres but only five and half (5.5) acres was destroyed. The evidence of the Plaintiff and her witnesses with their inconsistencies however established that the Defendants cut some cashew trees belonging to the Plaintiff. The Plaintiff tendered photographs of the farm exhibits “A”, “A1” and “A2” to support hercase thatthe Defendants cut down hercashew trees. From exhibit “A” series the Court counted about three trees which confirm that cashew trees on the Plaintiff’s farm were cut but they are not even up to ten trees let alone one hundred and eighty seven (187) trees being claimed by the Plaintiff. However, when the 2nd and 3rd Defendants were arraigned in the District Court Nkoranza the Court established based on the Agricultural Extension Officer’s report that the 2nd and 3rd Defendants cut ninety (90) trees from the Plaintiff’s cashew farm. There is no appeal pending against the said judgment ofthe District Court Nkoranza which was based on the Agricultural Extension Officer’s report. The Court therefore concludes that the Plaintiff could not substantiate her claim that the Defendants cut one hundred and eighty seven (187) cashew trees from her farm. However, she 29 established that the 2nd and 3rd Defendants cut ninety (90) cashew trees from her farmperthe judgment ofthe District CourtNkoranza dated 14thDecember, 2021. Counselfor Defendants claimed the names in the said judgment arenot the names of the Defendants and that the said judgment is not related to this matter. The Court however holds a different view because when the Plaintiff was cross – examined she indicated that she did not know the names of the Defendants. She added that when the Defendants were arrested they gave their names tothe police tobe written down. The Court is therefore of a considered view that although the name of the second Defendant was not spelt correctly in the judgment as “Botora” instead of “Batora” the evidence of the Plaintiff and her witnesses established cogently that the 2nd and 3rd Defendants were convicted and sentenced by the District Court Nkoranza for cutting 90 cashew trees from the Plaintiff’s cashew farm. Therefore, the judgment of the District Court Nkoranza dated 14th December, 2021 is so much related to the present case contrary to Counsel for Defendants’ claim that it does not. I reproduce thejudgment oftheDistrict CourtNkoranza forthe avoidance ofdoubt; 30 “IN THE DISTRICT MAGISTRATE COURT HELD AT NKORANZA ON TUESDAY THE 14TH DAY OF DECEMBER, 2021 BEFORE HIS WORSHIP ISSAH ABDUL WAHAB THE REPUBLIC vs. SHAIBUBOTORAH & 1OTHER Case called: Accused………present D/SgtF. Appiah Korang for prosecution………present Counselfor the accusedpersons…………..present By /Court: Having listened to the prayer of counsel for the accused persons, A1 sentenced to a fine of 80 penalty units or in default 4 months imprisonment whiles the (sic) A2 is sentenced to a fine of 100 penalty units or in default 8 months imprisonment. The accused are also ordered to pay for the said 90 cashew trees cut down at the cost assessed by the Agricultural Extension Officer inBusunya”. 31 Since there is no record before this Court of an appeal pending against the above judgment, the Court hereby adoptsthe said judgment that the 2nd and 3rd Defendants cut ninety (90)cashew treesfromthe Plaintiff’s cashew farm. The next issue about “whether or not the maturity and average life span of the cashew trees on the Plaintiff’s farm is forty five (45) years” in the Court’s view is not a matter to be established by the Plaintiff by merely stating so orally without any documentary evidence to convince the Court. It is a technical issue, which must be established by a technical person. The Plaintiff failed to call the Agricultural Extension Officer to convince the Court about her claim but in the interest of justice the Court googled and found that the average life span of cashew is between forty five (45) and one hundred (100) years. Since the Plaintiff pegged the life span of her cashew trees at forty five (45) years, the Court would accept that in the interest of justice. The Plaintiff said she initially cultivated the land with her deceased husband in the year 2000, and the cashew trees started maturing from the year 2004 which PW1 corroborated. From the year 2021 when the cashew trees were cut to the year 2022 that the Plaintiff issued the writ is eighteen (18) years not twenty (20) years as claimed by the Plaintiff but again in the interest of justice the Court will accept the Plaintiff’s claim that when her cashew trees were cut down by the 2nd and 3rd Defendants theywere twenty(20) yearsold. ISSUE(f) Whetheror nottheplaintiffis entitled to her claim. 32 From the evidence led by the Plaintiff and her witnesses the Court established that the 2nd and 3rd Defendants on the instructions of the 1st Defendant cut down ninety (90) cashew trees not one hundred and eighty seven (187) cashew trees from the Plaintiff’s cashew farm. The Court further established that the cashew trees which according to the Plaintiff matured in the year 2004 were eighteen (18) years old not twenty (20) years old when the 2nd and 3rd Defendants cut them. However, the Court would accept the twenty (20) years claimed by the Plaintiff. The Court also found that the average life span of cashew is between forty five (45) and one hundred (100) years and the Court accepts forty five (45) years as the lower figure and as claimed by the Plaintiff. The Plaintiff could however not establish that she harvests fifty five (55) bags of cashew per year at Ghs 500.00 per bag. The Defendants did not mount the witness box to provide any contrary view. The Plaintiff did not tender the Agricultural Extension Officer’s report to guide the Court. In order to do substantial justice the Court divided fifty five (55) bags by twelve (12) months and found an average of four and half (4 ½) bags per month based on one hundred and eighty seven (187) cashew trees. In the absence of a report to guide the Court, the Court would grant the Plaintiff three (3) bags of cashew per month on ninety (90) cashew trees which sums up to thirty six (36) bags of cashew per year. Regarding the ninety (90) cashew trees that were established by the District Court Nkoranza the Court would leave 33 that to be established by an independent valuer based on the Court’s findings noted above. Regarding the Plaintiff’s claim for general damages the case of Delmas Agency Ghana Limited vs. Food Distributors International Limited [2007-2008] SCGLR 748at749is instructive. Inthe said case, the Courtheld that; “Special damages is distinct from general damages. General damages is such as the law will presume to be the natural and probable consequence of the defendant’s act. It arises by inference of the law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right. The catch is that only nominal damages are awarded. Where the plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless generaldamages are appropriate…” In the light of the foregoing, the Court holds the view that general damages is appropriate to be awarded in the Plaintiff’s favour. The Court therefore awards to the Plaintiff Ghs 10,000.00 as general damages. Regarding cost, the Court being guided by Order 74 of C.I 47, took into consideration the length of the proceedings and trial from 30th May, 2022 that the writ of summons was issued to date which is two years and five months. The number of adjournments and travel expenses reasonablyincurred by thePlaintiff and her lawyer andcost ofprocesses the Plaintiff filed to prosecute the case. The conduct of the parties in the case and the fact that the Plaintiff engaged a lawyer throughout the proceedings. The Court also considered 34 that the Defendants also bore reasonable travel expenses and engaged a lawyer throughout the proceedings notwithstanding the fact that the Defendants did not open their defence. In order not to over burden the Defendants with too much cost, I award cost ofGhs30,000.00in favourofthe Plaintiff. CONCLUSION Inthelight ofthe foregoing, the Courtherebyholds asfollows; (a) The Court hereby declares that the felling / or cutting of the Plaintiff’s ninety (90) mature cashew trees on a parcel of land lying and situate at “Akonkonte” at Dumase on Nkoranza stool land at the instance of the Defendants without the consent and authority of the Plaintiff is wrongful, unlawful and constitutestrespass (b) A declaration that the Plaintiff is entitled to and the Defendants are hereby ordered topay tothe Plaintiff, the sum of thevalue ofninety (90) cashew trees that was established at the District Court Nkoranza at thirty six (36) bags of cashew nuts per year for twenty five (25) years at a value assessed by an independent valuer per bag to be accrued from the Plaintiff’s cashew trees for theremaining economic life –span which revenue would be denied. 35 (c) Interest on the sum assessed by an independent valuer in relief (b) at the current commercial bank rate from the 14th day of July 2021 till date of final payment. (d)GeneraldamagesofGhs 10,000.00is awarded inthe Plaintiff’s favour. (e) CostofGhs 30,000.00is awarded in thePlaintiff’s favour. (SGD) JUSTICEJOYCE BOAHEN HIGHCOURTJUDGE 31ST OCTOBER,2024 36