Opoku v Osei (G/WJ/DG/A11/10/2023) [2025] GHADC 188 (24 April 2025)

IN THE DISTRICT COURT HELD AT WEIJA, ACCRA, ON THURSDAY, THE 24TH DAY OF APRIL, 2025, BEFORE HER WORSHIP RUBY NTIRI OPOKU (MRS), DISTRICT MAGISTRATE SUI NO: G/WJ/DG/A11/10/2023 OPOKU AGYEMANG PLAINTIFF VRS CECILIA OSEI DEFENDANT PLAINTIFF IS PRESENT AND REPRESENTED BY DANIELINA ESSEL HOLDING THE BRIEF OF KAILA OFORI ESQ, DEFENDANT IS PRESENT AND REPRESENTED BY KOFI SUNU ESQ. JUDGMENT The Plaintiff caused a writ of summons to be filed at the registry of this court on 4th May 2023 seeking a restraining order directed at defendant to stop offloading cement during working hours as it is causing harm to his health and an order for costs and any further order(s) as the court may deem fit. The defendant filed a notice of intention to defend on 12th May 2023 and filed a statement of defence on 15th June 2023 and counterclaimed for an order of court directed at the plaintiff to move his container and wares from the pavement and thereby create a way for pedestrians and general public to access the pavement. THE CASE OF THE PLAINTIFF The case of the plaintiff is that he trades in plumbing materials and plastic containers at a shop in Weija. Defendant has her shop adjacent to his and sells cement and other building materials. 1 It is the further case of plaintiff that during working hours, defendant has a truck which supplies her with cement and periodically, it comes to offload cement at the shop and her clients also come to load off cement they have purchased. Plaintiff added that the truck that offloads the cement is about 40 feet long and it entirely blocks the entrance of plaintiff’s shop for not less than eight hours thus blocking her view from passersby and potential buyers. According to plaintiff, when the cements are being offloaded, the dust from the cement enters his shop and he inhales the dust which is very dangerous to his health. Plaintiff says that this has been the conduct of the defendant for the past five years and he has persistently complained about it to the defendant severally to no avail. Plaintiff averred that for the sake of neighbourliness, he asked defendant to offload her cement preferably before 8am or 5pm after he closes from work but she has refused and continues to engage in her misconduct. Plaintiff says that presently, he has resorted to leaving his shop anytime the truck arrives to stand at a distance till defendant is done offloading her cement which usually takes about two to three hours and thereafter he has to clean his shop whenever the truck leaves as his shop would have been filled with dust. Plaintiff avers that he is unable to sleep at night as he coughs due to the chemical substances, he inhales at work due to the offloading of the cement. On his recent visit to the hospital, he was given some medications to relieve his pain and discomfort. In conclusion, he says that he reported the incident to the Environmental Protection Agency and he was advised to take legal action since the defendant has refused to heed his complaints. Plaintiff tendered pictures of the truck parked in front of his shop and same were admitted and marked as Exhibits A, A1, A2 and A3. 2 THE CASE OF THE DEFENDANT The defendant testified through her lawful attorney Kwesi Appiah. He tendered in evidence the Power of Attorney from the defendant dated 29th February 2024. Same was admitted and marked as Exhibit 1. It is the case of the attorney that the plaintiff lacks capacity to issue the writ against the defendant because he is not the owner of the shop he is occupying. He testified that the shop belongs to one James Amoako Atta who brought plaintiff to work in his shop some six years ago. He added that in a statement of defence filed by the plaintiff on 10th October 2022 at the High Court in suit number LD/0561/2023 pending at the land division of the High Court in Accra, plaintiff stated that he was on the land pursuant to the permission of the said Jones Amoako Atta. He tendered the said statement of defence and same was admitted and marked as Exhibit 2. According to the attorney, when the plaintiff came to occupy the shop, he extended the shop close to the access road and thereby covered the pavement which is common to shop owners including defendants. He tendered in evidence the extension made by the plaintiff. Same was admitted and marked as Exhibit 3 series. He added that the rest of the property owners in the area do not complain of the dust defendant’s business emits because their business has not been extended so close to the edge of the pavement to be directly affected by the dust. He tendered in evidence pictures of the plaintiff’s shop. Same were admitted and marked as Exhibits 3, 3(A) and 3(B. He prayed the court to make an order directed at plaintiff to return his shop to its original place where he will no more be affected by the dust instead of injuncting defendant from operating her business in the normal working hours of the day. ISSUES SET DOWN FOR DETERMINATION 3 The issues arising from the pleadings were set down for determination as follows; 1. Whether or not plaintiff has the capacity to institute this action 2. Whether or not defendant’s act of offloading cement in front of plaintiff’s shop interferes with plaintiff’s goods Pursuant to the orders of the court for parties to file written addresses by 31st October 2024, plaintiff filed his address on 14th April 2025 whilst defendant filed his address on 17th April 2024. The relevant aspects of the addresses shall be referred to in the judgment of this court. BURDEN OF PROOF It is trite that in civil cases, proof is by a preponderance of probabilities. In the case of Ackah v Pergah Transport Ltd [2010] SCGLR 728 at page 736, Sophia Adinyira JSC (as she then was) delivered herself as follows; “It is a basic principle of law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail.” This position of the law was re-echoed by Benin JSC in the case of Aryee v Shell Ghana Ltd & Fraga Oil Ltd [2017-2020] 1 SCGLR 721 at page 733 as follows; “It must be pointed out that in every civil trial all what the law requires is proof by a preponderance of probabilities. See section 12 of the Evidence Act, 1975 (NRCD 323). The amount of evidence required to sustain the standard of proof would depend on the nature of the issue to be resolved.” The burden of proof may shift from the party who bore the primary duty to the other. Section 14 of the Evidence Act, 1975 (NRCD 323) provides as follows; 4 Except as otherwise provided, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting. In the case of Re Ashalley Botwe Lands; Adjetey Agbosu v Kotey [2003-2004] SCGLR 420, it was held as follows; “It is trite learning that by the statutory provisions of the Evidence Decree 1975 (NRCD 323) the burden of producing evidence in a given case is not fixed but shifts from party to party at various stages of the trial depending on the issue(s) asserted. EVALUATION OF THE EVIDENCE AND THE OPINION OF THE COURT ISSUE ONE Whether or not plaintiff has the capacity to institute the present action. It is the case of the defendant that the shop in which plaintiff operates from belongs to one James Amoako Atta who brought plaintiff into the shop some six years ago. He supported his claim with Exhibit 2, which is a Statement of Defence filed by the plaintiff herein in a matter with suit number LD/0561/2023 intitled Samuel Darko v Opoku Agyeman pending at the High Court. He added that at paragraphs 4, 5 and 6 of Exhibit 2, plaintiff herein admitted that the shop in which he trades belongs to one Jones Ofori Atta and that he is in the said shop with the permission of the owner. In the address of the counsel for the defendant, he submitted that plaintiff has no proprietary interest in the land and that he is only a licensee. He submitted further that as a licensee, plaintiff can sue on any infringement of his right but that capacity is premised on the condition that the licensor had failed to act when requested so to do. Counsel submitted that plaintiff has failed to lead evidence to show that he had requested the said owner to bring an action against the defendant in court or that the owner had permitted him to do so. According to counsel, the plaintiff had testified that the owner had given him permission to bring an action against the defendant in a verbal conversation which is not sufficient. 5 Counsel contends that plaintiff is not clothed with capacity to bring the instant action against the defendant. Counsel for the plaintiff in her written address submitted that the area of law applicable to this action is the tort of trespass to chattels (goods). Counsel relied on the cases of Johnson v Diprose [1893] 1 QB 512 @ 515, CA and Majolagbe v Larbi & Ors [1959] GLR 190-195 and submitted that the plaintiff in an action for trespass must at the time of the trespass have the present possession of the goods, either actual or constructive or a legal right to the immediate possession. Counsel argued that it is established in law that one need not be an owner of a chattel before one can sue for trespass to chattel. Mere possession is enough. She contended that once plaintiff is in possession of the store and all the chattels in the store where he conducts his business, he has capacity to institute this action. She added that under cross examination, defendant’s attorney admitted that plaintiff sells plastic from the shop in question. In Sarkodee I v Boateng III [1977] 2 GLR 343-367, the court on capacity held as follows; “It is now trite learning that where the capacity of a plaintiff or complainant or petitioner is put in issue, he must, if he is to succeed, first establish his capacity by the clearest evidence.” At pages 439 to 441 of the book, The Law of Torts in Ghana, Text, Cases & Materials by Stephen Offei, the learned author on trespass to chattels stated as follows; “An intentional or negligent interference with goods in the possession of the claimant is a trespass. This tort protects the claimant’s interest in (i) the retention of possession of his goods (ii) the physical condition of his goods (iii) the inviolability of his goods.” He stated that the claimant must be in present possession of the goods either actual or constructive at the time of the unlawful interference and whether the claimant is the owner is immaterial. (Emphasis provided) 6 I find from the evidence that the fact that plaintiff is in present possession of the goods in the shop is undisputed. In deed during cross examination of the attorney of the defendant the following information was elicited; Q: What kind of business does the plaintiff do? A: What I have disclosed is that I see poly tanks at the premises of the business Q: So, the plaintiff, in addition to selling poly tanks also sells dustbins not so? A: Yes, but he just started selling dustbins. Plaintiff’s reliefs before this court are for a restraining order directed at the defendant and costs. His explanation for his reliefs which is contained in his summary of claim and affidavit in support is to the effect that the defendant during working hours loads and offloads cement into a vehicle in front of his shop and when the air blows, cement dust enters his shop and sometimes into his nostrils. The question is whether or not plaintiff is clothed with capacity to bring an action in court for the protection of his interests in his goods or the physical condition of same? Applying the law cited supra to this case, it is my considered view that plaintiff is clothed with capacity to sue for trespass to chattel once his possession of the goods is not contested. The issue of whether or not plaintiff is the owner of the chattel is immaterial. ISSUE TWO Whether or not defendant’s act of offloading cement in front of plaintiff’s shop interferes with plaintiff’s goods. At page 440 of Stephen Offei’s book cited supra, the author explained that trespass to chattels like other forms of trespass is actionable per se that is to say; without proof of 7 actual damage. He added that the modern rule is that the act constituting trespass must either be intentional or negligent and the interference must be direct. The defendant through her attorney admits that plaintiff deals in poly tanks at the premises of his shop whilst defendant sells cement. He however denied that defendant’s business interferes with that of the plaintiff. During cross examination of the defendant’s attorney the following information was elicited; Q: Take a look at Exhibit A1, you will see that the bags of cement are being offloaded is that not so? A: Yes Q: And this car is directly in front of plaintiff’s wares not so? A: That is what the picture is showing Q: Now look at Exhibit A3, you will see that the batch of cement was being offloaded halfway not so? A: That is so Q: And so when the trucks come to pack in front of Mr. Opoku Agyemang’s shop, anybody standing in front of the building cannot see Mr. Opoku Agyemang’s wares. A: That is so Again, during cross examination of the plaintiff, the following information was elicited; Q: I am suggesting to you that no other person has complained about the dust because they have not extended their properties to almost cover the pavement. A: I have not extended my shop to cover any pavement. 8 From the evidence gathered, the fact that defendant’s vehicles park in front of defendant’s shop to offload and load cement is not in doubt. Defendant’s defence is that plaintiff has extended his shop to cover the pavement which assertion has been denied by the plaintiff. He backed his claims with Exhibit 3 series. Respectfully I do not find anything on the face of Exhibit 3 series which proves the assertions of defendant. From the totality of the evidence before this court, I find that defendant’s act of loading and offloading cement in front of plaintiff’s shop with the accompanying dust in the teeth of his protests is direct and intentional and constitutes interference with plaintiff’s goods. Accordingly, I find that plaintiff has satisfied the burden on him to prove his case on the preponderance of the probabilities. Judgement is accordingly entered in favour of plaintiff against the defendant as follows; The Defendant, his assigns, privies, workmen and successors are perpetually restrained from loading and offloading cement in front of plaintiff’s shop. Costs of GHC10,000.00 is awarded in favour of the plaintiff against the defendant. ..............(SGD).............................. H/W RUBY NTIRI OPOKU (MRS.) (DISTRICT MAGISTRATE) 9