Richard v Insusah (BR/KD/DC/A11/04/2024) [2025] GHADC 251 (9 April 2025)

INTHE DISTRICTCOURTHELDATKWAME DANSOONWEDNESDAYTHE 9TH OFAPRIL2025.BEFORE HERWORSHIPCYNTHIAADEIANDYESQ. (DISTRICTMAGISTRATE) SUITNO.:BR/KD/DC/A11/04/2024 NANAABONKRARICHARD PLAINTIFF AND ABDUL-RAHAMANINSUSAH DEFENDANT J U DGME NT This is a case of enforcement of an arbitration award and claim for damages. Plaintiff is a chief and also works with the Kwame Danso Government Hospital. He stays at Kwame Danso. Defendant is a teacher and also resident at Kwame Danso, in the endorsementofhis amended writ ofsummons, plaintiff claim the following reliefs: 1. An order compelling the defendant to pay two fowls, two crates of eggs, kasapreko, one curtain, four sheep and an amount of GH₵200.00 as pacification 1 as a result of an arbitration award presided over by Nana Okyere Santo, Baamuhene ofDwanTraditionalarea and itselders. 2. Generaldamagesforhaving affairs withthe wife. 3. Anyfurther order(s) Defendant pleaded not liable tothe claim. Plaintiff stated that he was married to Victoria Sarpomaa according to customary law. According to him, they were staying at Kwame Danso. On the 1st May, 2023, plaintiff said he decided to travel alone to his hometown at Konkonsi for a funeral. While preparing to leave, his wife informed him that she was expecting a visitor. She sells clothing items. That he was still at home when the defendant arrived. Plaintiff said he then left for the funeral and spent two weeks at his home town. On his return, plaintiff said his wife whom he had left at home was not sleeping in the matrimonial home but rather Drobe where she plied her trade. Plaintiff said he sent a message to her that he’s back so she should return home but she refused. Plaintiff said his wife's behavior was strange to him so he decided to monitor her to find out what she was up to. It was through such monitoring that he saw her at the defendant's house. According to the plaintiff, on that day, he went to the house with prior knowledge that his wife was with the defendant. He said he knocked the defendant’s door so hard and it attracted other occupants of the compound house out. That defendant emerged from his room and the 2 plaintiff demanded to see his wife. That his wife also came out of the room. That the incident happened around 8:00 pm. Plaintiff insisted that they were having sex at the time he got there. Plaintiff said he then called the defendant's landlord, one Yaw Dankwah, to come and witness what was going on. Plaintiff added that the defendant’s porchwaslocked frominside. Furthermore, Plaintiff said after theincident, he wentto informVictoria’s family about it and also reported it to the Director of Ghana Education Service at Kwame Danso. A meeting was summoned at the Director’s office but the matter could not be heard to finality as some chiefs including the Baamuhene who had accompanied the plaintiff to the meeting suggested that the hearing should rather be done at theBaamuhene’s palace. Plaintiff stated that before the scheduled date for the hearing at Baamuhene’s palace, the defendant sought permission to visit his ailing mother at his hometown. The GES Director then delegated two officers from the education office to represent the defendant at the arbitration. It wasat that hearing that theaward wasannounced for the defendant to provide the items listed in plaintiff’s writ of summons. Finally, the plaintiff stated that even after the case had been filed in court, the defendant called him on phone pleading foranout ofcourtsettlement. Plaintiff called twowitnesses in supportofhis case. 3 First witness (PW1) was Benjamin Yaw Bekee, a resident of Kwame Danso. He is an Assemblyman and also a teacher. He is also the defendant's landlord. He said on the day ofthe incident and about 8:05pm, He received calls fromthe plaintiff and one other tenant to come to the house. He said when he got there, he saw the defendant and Victoria in the defendant's locked porch. He said he also saw the plaintiff and other people standing outside of the porch. He said he managed to convince the plaintiff to leave the scene and he also returned to his room afterwards. Whilst in his room, he heard a knock and when he came out, he saw that it was the defendant. He allowed him toenter. PW1 said, defendant confessed to him that he was having an affair with Victoria and that the lady told him she was not married. PW1 said the defendant then asked for his intervention to settle the matter amicably. As a result, PW1 said on behalf of the defendant he sent an apology to the plaintiff through the sub-chiefs of Mempeasem, Nana Yaw. That defendant packed out of his house before any settlement could be reached. Defendant denied theconfession. Plaintiff’s second witness (PW2) was Yaw Danquah. PW2 stated that on 28th May, 2023 and at about 8:00 pm, he received a call to come to Bayarko Assemblyman’s house at Kwame Danso. He said he rushed and on getting there, he saw the plaintiff standing in front of the defendant’s porch. He then asked the plaintiff what he was doing there and he answered that he came to meet his wife in the defendant's room. PW2 however, said 4 he saw the defendant andplaintiff’s wife in the defendant'slocked porchwhen he gotto the scene. PW2 said he later accompanied the plaintiff to the office of the Director of Education to report on the defendant's conduct to him. A meeting was scheduled to hearthe matterbut he (PW2) wasnot atthe said meeting. Defendant's defense to the claim was that he was not present at the arbitration as such he could not be heard in his defence before the publication of the awards. Again, that Victoria was just a friend who came to deliver items he had bought from her to him in hishouse. Defendant explained that somewhere December 2022, he got to know Victoria when he bought some items from her and that since then he became her customer and friend. That sometime in June, 2023, Victoria went to his house to deliver items he had bought from her. While in the house, the plaintiff came and angrily started demanding to know what was going on between himself and Victoria. According to the defendant, it was during the said encounter that he got to know that the plaintiff was married to Victoria and that they had been married for five years. Defendant said he explained to plaintiff that there was nothing amorous going on between them and that they were just friends. And that she only came there to deliver items he had purchased from her. Defendant said he later got to know that the defendant had gone to report the incident to Nana Okyere Santo, the Baamuhene of Dwan Traditional area. He could not attend the said arbitration because he was on vacation visiting his ailing mother. Defendant said he was 5 not given the opportunity to defend himself personally before the chiefs. Defendant insisted that the allegations against him were false and denied having sex with plaintiff’s wife. Defendant called Victoria Sarpomaa as his only witness. DW1 denied any subsisting marriage between herself and the plaintiff at the time of the incident. She actually described the plaintiff as her ex-husband in her evidence in chief. According to DW1, sometime in June 2023, she went to deliver some items the defendant had ordered from her at the defendant's residence. Whilst at the defendant's house the plaintiff came there and in an angry mood started questioning to know what she was doing there and also wanted to know what was going on between the defendant and herself. She said she explained to him that she had only gone to deliver items to him and that they are only friends. DW1 insisted that there was nothing going on between herself and the defendant apart from being friends and a customer of hers. She also stated that the accusationagainst thedefendant is nottrue. Fromtheevidence, the issuesthat falls fordeterminationareas follows: 1. Whether or not the arbitration award published at Baamuhene’s palace is enforceable against the defendant. 2. Whetherornot thedefendant is liable topaydamages tothe plaintiff. 6 On the first issue as to whether or not there has been a valid customary arbitration for which reason the defendant can be ordered to provide the items been claimed by the plaintiff, customary arbitration is defined in the case of Pong v Mante (964) GLR 593 as: “the practice whereby natives of this country constitute themselves into ad hoc tribunals popularly known and called arbitrations, for the purposes of amicably settling disputes between them or their neighbors…” This mode of settling issues between citizens has also been codified intheAlternativeDisputeAct 2010,(Act 798). The courts gave the essential requirements for a valid customary arbitration thus: there must be 1. Voluntarysubmissionofthedispute for settlement. 2. Prioragreement tobe bound by theoutcome ofthe settlement. 3. Due observationofthe rulesofnaturaljustice. 4. Compliance with rulesonjurisdiction. 5. Publicationofthe award. When it comes to voluntary submission of the dispute for settlement, in the case of Paul v Kokoo (1962) 2 GLR 213 SC, the court stated “The only solid foundation of a valid customary arbitration of a binding award is the voluntary submission of the dispute to a relatively disinterested third party to make a fair investigation into it and to give a decision on 7 it”. To amount to valid arbitration, it must be shown that the other party agreed to submit to the arbitration after it had been explained to him and his opponent made a complaint and a further request that the arbitrators should preside over the dispute to settleit. In the instant case, the plaintiff's account on how the matter went before the Baamunhene were captured in paragraphs 19-21 of his statement of claim. He stated therein that after the incident at defendant’s house, he reported the defendant's conduct to the Director of Education, Sene West District and a date was scheduled for a meeting. On that day, the plaintiff said he went with two sub-chiefs including the Baamuhene. So it was at the said meeting that the Baamuhene said to the Director that due to the nature ofthe case, theyshould ratherallowhim togoand settle it athis palace andthe Director agreed. It is therefore clear that there was no official complaint and request by the plaintiffto theBaamuhene for hisintervention. The statement also did not indicate ifthe defendant actually consented tosubmit himself.As amatter offact, the plaintiff actually said it was the Director who agreed to refer the matter to the chief and not the defendant. On the basis of the above therefore, I find that the defendant did not voluntarily submit tothe arbitration. On the next requirement as to whether there was a prior agreement by parties to be bound by the final outcome, it flows from what transpired in the discussions in the first 8 requirement discussed above that there was no such agreement. As such, this requirement wasalso not met. The next requirement is whether the rules of natural justice were observed. Section 93 of Act 798 mandates a customary arbitrator to apply the rules of natural justice and fairness. There are twoaspects ofthis rule and they areAudiAlteram Partem and Nemo Judex in causa sua. The audi alteram principle, means that each party to the dispute should be given an equal hearing. It therefore enjoins the arbiters to give each party an equal chance to state their case fully,freelyand voluntarily. Inthe case ofBudu v Caesar [1959] GLR 410, Ollenu J pointed out that it was a fundamental principle of customary law that no person shall be condemned either in respect of his person or property without being given fair hearing. The second requirement of the rule being nemo judex in causa sua enjoins a person not to sit in arbitration over a matter if he is interested in the outcome, or is biased against one party, or is involved in a conflict of interest, or being ajudgein his owncause. Inthis particular case before us, plaintiff stated in paragraph22ofhis statement ofclaim thus: “That the plaintiff avers that when the arbitrators decided to sit on the matter and was about to settle, the defendant sought permission to visit his sick mother and because of that the Director delegated two officers from the Ghana Education Service to represent the defendant which they did. Further to this, this was what transpired when the plaintiff was being cross-examined by counsel forthe defendant: 9 “Q. Do you agree with me that the Director appointed two people to represent him at the ArbitrationCommittee setup by Nananom? A. Yes. Q. The defendant was absent during the arbitration due to the ill-health of his mother, is that correct? A. Yes.The delegates mentionedit. Q. You will agree with me that the decision was taken in the absence of the defendant, is that correct? A. Yes”. It is clear from the answers given by the plaintiff that the defendant was not present at the said arbitration and therefore was not heard in person in his defence of the allegations against him. There is also no evidence on record that it was the defendant who nominated thetwopeople who attended from theG.E.S torepresent him. Evidence on record shows that it was the Director who, though not a party in the matter, asked thepeople togo andrepresent thedefendant. As discussed in the principle above, it is required that the person being accused must be present todefend himself. Since this is lacking, this requirement to hear the otherside in hisdefence also is lackingas suchnot met. 10 The third requirement was whether the panel had jurisdiction to hear the matter. Customary law may be used to settle cases arising from customary issues and to which customary law is to be applied. It is also used in settling civil cases. It cannot be used to settle any case mentioned in section 1 of Act 798. Again, a customary arbitration per section 89(2) of Act 798 may be permitted by a court to settle minor criminal cases.As a matter of fact, section 73 of the Courts Act 1993, Act 459 allows a criminal case which is notafelony oramisdemeanor aggravatedin degree tobe settled. The Plaintiff herein is a sub-chief, he is accusing the defendant of sleeping with his wife. This is a case of customary nature and as such amenable to settlement by a customary arbitration. The arbitratorsthereforehad jurisdictiontosit onthe matter. The final requirement is publication. Arbitrators are enjoined to publish their award. Publication in this sense means that the judgment should be pronounced in public for the whole world to know its contents. This requirement of publication after the deliberations was not challenged by the defendant. According to the plaintiff it was during the publication that the items he is demanding in his writ of summons were declared. Therewas thereforeapublication. From the discussions and holdings above, some key requirements were not met by the arbitrators as such there was no valid customary arbitration to warrant its enforcement by this court. 11 The second and final issue which is also the second claim of the plaintiff is for the court to determine whether or not the defendant is liable to pay damages to the plaintiff for what the plaintiff described as the defendant having an affair with his wife. However, before going into the resolution of the above issue, I will first have to make a determination whether as at the time that the incident happened, plaintiff and Victoria werestill married. On the question whether there was a subsisting marriage at the time of the incident; plaintiff stated that he was married to Victoria at customary law and that there had not been valid dissolution of the marriage at customary law. Victoria described the plaintiff as her ex-husband in paragraph 3 of her witness statement. When she was questioned how the dissolution was done, she said she returned a drink to plaintiff by herself and that all efforts by her family to sit down with plaintiff to dissolve the marriage did not yield results asplaintiff refused to honorthosemeetings. In my opinion it is not enough for a wife alone to send drinks to a man to dissolve a marriage. The two families should have met for that purpose. There is no evidence on record that the plaintiff's family were invited and they refused to honor the invitations. There was thereforeasubsisting marriagebetweenthe plaintiff and Victoria. 12 Coming back to the issue at hand, to have an affair with someone means to engage in a romantic or sexual relationship with that person, typically secret, while being committed to someone else in a marriage, partnership or other committed relationship. Itcouldbe justan emotional, physical oronline affair. Under customary Law, a wife is expected to take care of the household, do the laundry, clean the house, cook and keep the husband company. She is also supposed to be faithful to the husband and bear children for him. There are two main remedies available to a man when his wife fails in any of the above. They are: an action in the common law tort of enticement and seduction at customary law. I am starting with enticement. When a third party induces a wife to withdraw her services from the husband, the husband may bring an action in enticement against the third party and claim damages. In order to be successful, a husband has to prove that the defendant procured, persuaded and induced his wife to leave him. It is a violation of the husband’s legal right to the wife’s consortium. The burden is on the husband to prove that the wife withdrew her services as a result of the defendant’s inducement. In the case of Mate v Amanor (1973) 1 GLR 469-482. The court held that for an action of enticement to succeed, it was not enough to show that the defendant committed adultery with the plaintiff’s wife, since an action for enticement is wholly independent of sexually immoral factors. To succeed the plaintiff must prove that the defendant persuaded or 13 procured to cease cohabitation and consorting with him. The husband must prove that the defendant induced and the wife withdrew her services as aresult of the inducement. In the case at hand plaintiff stated that he travelled to his hometown and on his return, his wife who he left in the matrimonial home at Kwame Danso was not sleeping at home but rather Drobe where she plied her trade. That allattempts atgetting his wife to return home did not yield results. This, according to the plaintiff, made him decide to monitor her and it was through surveillance that according to him “caught the defendant red handed having sex with his wife at the defendant's rented house”. The defendant denied this and said he had nothing amorous going on between himself and plaintiff’s wife beyond being friends that came as a result of customer relationship. Defendant explained that, that day Victoria had come to deliver some items he had purchased to him at his home. That it is not true that the plaintiff caught them having sex. He admitted that Victoria was in his room and also that the burglar proof at the entrance of theporchwaslocked. As indicated earlier, when it comes to the tort of enticement, it is immaterial to prove sexual immorality. What needs to be proved is that the defendant procured the plaintiff’s wife to cease cohabitation. This essential requirement was not proven as there’s no evidence on record to suggest that the defendant procured Victoria to leave the plaintiff. As a matter of fact, the plaintiff's own witness who happens to be the defendant's landlord says he has not seen Victoria in his house prior to the day of the 14 incident. I therefore hold based on the above, that the plaintiff failed to prove enticement. As indicated above, the second remedy available to the plaintiff is seduction. It involves sexual and immoral activity between a married woman and another man. It may be proved through confession given voluntarily, where the parties are caught in a sexual act or through circumstantial evidence such as when a woman gives birth to a child of anotherman. In this case, the plaintiff says he caught the defendant and his wife having sex. The defendant denied this and said the plaintiff's wife only came to deliver items he had purchased from her. That they were not having sex. All plaintiff’s witnesses said at the time they were attracted to the scene, they met defendant and Victoria standing inside defendant’s locked porch. Plaintiff himself said when he got to the defendant's house that evening, he saw that Victoria’s motorbike was parked behind the defendant's room. The two were inside the room. He could not enter the room because he could not get access throughthe locked porch. It was after he had called the defendant that he came out of his room then subsequently, Victoria. It is clear that even though the two were inside the room, the plaintiff did not catch them red handed having sex as he wants the court to believe. It was merely a 15 suspicion of them having sex and as the courts have held over and over again, no multitude ofsuspicions canamount to proof. I find that the plaintiff failed to prove that he actually caught the defendant having sex withhis wife assuch aclaim inseduction also fails. On the basis of the above findings therefore, plaintiff failed to prove his case against the defendant assuch hiscase fails. Judgment istherefore enteredas follows; I. Plaintiff’scase is dismissed. II. CostofTenThousand Ghana cedis (GH₵10,000.00)against the plaintiff. ……………SGD……………… (DISTRICTMAGISTRATE) 09-04-2025 16 17