Kyeremeh v Agya (A11/06/2024) [2025] GHADC 243 (21 February 2025)

IN THE DISTRICT COURT SITTING AT WAMFIE ON THE 21ST DAY OF FEBRUARY, 2025 BEFORE HIS WORSHIP EUGENE OBENG- NTIM,ESQ. SUIT NO.:A11/06/2024 KYEREMEH JOHNSON ------ PLAINTIFF Wamfie VRS AGYA BEN ------ DEFENDANT Wamfie Parties present Parties not represented. JUDGMENT Introduction: The plaintiff, Kyeremeh Johnson, instituted an action against the defendant, Agya Ben, seeking an order to compel defendant to pay an amount of GH¢ 5,000.00 cash to the plaintiff as compensation being the total value of food crops and food staffs destroyed by the defendant stray animals. The court ordered the parties to file pleadings which the complied. Subsequently an order was made for them to file their witness statement for which the plaintiff filed on the 22/2/2024 and the defendant the 7/2/2024. Page 1 of 12 The Plaintiff in his witness statement stated that he owns a farm closer to his house where he cultivates cocoa, mango, plantain and maize for his sustenance. On the 3rd September, 2023, the defendant opened his livestock without supervision thereby causing damage to his plantain and maize. While he had the goat detained, the defendant appeared to take possession but he refused and suggested that it be taken to the Environmental Health and Sanitation Office. Before he could return from his farm, defendant had untied it and left. Then on 25th September, 2023, defendant opened his livestock and two sheep cause damage to his maize and plaintiff. He continued that he decide to send the animals to the environmental office the next day because it was late. However, he could not send them because he had to attend a funeral. Defendant requested for their release since one was ill but he refused. Plaintiff also added that the two sheep belonged to one Kwabena alias GNTC, who, in the company of defendant, came to his house two days later to inquire about the death of one of the sheep. He informed them that the issue of the death sheep had been resolved at the sanitation office. According to plaintiff, he was arrested by the Wamfie police and the matter was amicably settled after he had paid GH¢ 1,000 to defendant. A week later he instituted the action against defendant before this court which led to an invitation by the police and placed in cells. He concluded he was frustrated at the police station for no reason and therefore pray for defendant to compensate him with GH¢ 5,000.00 for the crops and food staffs damaged by the defendant’s sheep. Page 2 of 12 Plaintiff did not call any witness but tendered two pictures purporting to show the destruction to his farm. The pictures were accepted and marked Exhibits “A” and “A1”. The defendant denied liability and in his witness statement stated that he is engaged in the rearing of goat, sheep and fowls for a living. That some of the sheep belonged to one Kwabena alias Assemblyman. He usually kept the animals but sometimes opened them to feed under supervision. In the year 2023 he opened the animals to feed but some of them did not returned and when he set out to search, he found 16 of the goats and 22 fowls poisoned. He inquired from plaintiff who admitted that he intentionally sprayed poisonous substance on avocado leave and maize to kill and get rid of them. He continued that in order to protect his animals and plaintiff’s farm, he used his own resources to personally fenced plaintiff’s farm but he removed it. He also kept his animals and only released them under his supervision. Plaintiff will untie them and have them in his possession and demand payment of GH¢ 150 for each animal. That he went to town only to return to find two of his sheep in plaintiff’s cage with the reason that they have caused damage to his food crops. Plaintiff detained the two sheep for four days leading to the death of one after which he sent it to the Environmental Health and Sanitation Office. Plaintiff demanded for GH¢ 300 before he would show defendant where he had deposited the dead sheep which he paid. He thereafter informed the owner of the sheep, Kwabena, who demanded GH¢ 1,000 from the plaintiff for the cost of the sheep which plaintiff paid. Defendant concluded that he had smoked the piece pipe with the plaintiff and that his sheep did not cause damage to the food crops of the plaintiff. Page 3 of 12 Defendant filed a witness statement for one Ofori Asante but could not produce him to testify despite the court granting him three opportunities to do so. Under the circumstances, the witness statement filed for the witness of defendant would not to be examined as part of the evidence. Issues for determination Based on the evidence, the following issues are set for determination: i. whether or not defendant’s animals trespassed unto plaintiff’s land. ii. whether or not plaintiff is entitled to compensation of GH¢ 5,000.00 being the value of food crops and food staffs destroyed by the defendant’s stray animals. Applicable laws and cases. In order to answer the issue raised above, I shall evaluate the law on the burden and degree of proof under the Evidence Act 1975 (NRCD 323) and related judicial decisions. I would thereafter examine laws relating trespass to land by animals and special damages. The burden and degree of proof under the Evidence Act. The burden of proof Section 11(1) and (4) provides as follows: ‘(1) for the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid ruling on the issue against that party. Page 4 of 12 (4) In the other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that all the evidence a reasonable mind could conclude that the existence of the fact was more probable that its non-existence’ Further, section 14 of the Evidence Act, 1975 (NRCD 323) states as follows: Except as otherwise provided by law, 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 ascertain. The degree of proof Proof in civil proceedings is established by the principle of the preponderance of probabilities or balance of probabilities. Section 12(2) provides that except as otherwise provided by law the burden of persuasion requires proof by preponderance of probabilities. This position is supported by the Supreme Court in Adwubeng v Domfeh [1997-98] 1 GLR 282 where it was held at page 295 that: Sections 11(4) and 12 of NRCD 323 clearly provide that the standard of proof in all civil actions is proof by a preponderance of probabilities-no exceptions are made. Similarly, the Supreme Court in the case of Odonkor & others v Amartei GBR 1993-94 VOL 1 held that the Evidence Decree 1975 (NRCD 323) sections 11(4) and 12 provided that in all civil cases judgment might be given in favour of a party on the preponderance of probabilities. What is required by the court is to assess the evidence of the parties, including their witnesses, and draw a conclusion that, on the preponderance or balance of probabilities, the court is inclined to accept the evidence of one party relative to that of the other party. Page 5 of 12 Issue 1. i. whether or not defendant’s animals trespassed unto plaintiff’s land. Trespass to land is the unlawful interference with the use or enjoyment of land in the possession of another. It could be in the form of a person entering or causing or allowing one’s animal to enter unto the land. Such trespass is actionable per se. That is, it is committed immediately there is entry, regardless of the degree of entry and does not require proof of damage to or things on the land. This position was affirmed in the case of Chegu v. Dagomba [1977] 1 GLR 412-416 H.C by Edward Wiredu J (as he then was) at p.414 that trespass to land involves an entry thereon without the permission of the true owner including his agents, servants, etc. or one in possession thereof. It is a wrong against possession. Cattle trespass like trespass to land is actionable per se, that is without proof of actual damage. His Lordship continued in order to succeed in an action for cattle trespass a plaintiff must prove the following: (a) that the animals which strayed into the farm of the plaintiff arc cattle, (b) that the animals belong to the defendant, (c) that the animals were under the control of the defendant, namely his cattle drovers; and finally (d) that the farm trespassed upon belongs to the plaintiff. Based on the case referred supra, plaintiff bears the burden to prove that the two sheep strayed unto his farm; that they belong to the defendant; that the animals were under the control of the defendant and that the farm the animals trespassed unto belongs to the plaintiff. Page 6 of 12 According to the evidence of plaintiff, on 25th September, 2023, defendant opened his livestock and two sheep caused damage to his maize and plantain. He attached two Exhibits, “A” and “A1” which are pictures of the alleged damaged plantain and maize. A careful examination of the two pictures clearly shows damage to plantain and maize. The defendant, while admitting that he found two of his sheep tied at plaintiff’s house, denied the sheep caused the damage. He contended that he tied them and went to town only to return to find two of his sheep in plaintiff’s cage with the reason that they have caused damage to his food crops. What the defendant is alleging is that, the two sheep did not escape from their confinement rather, plaintiff went to his house, untied them and sent them to his house and thereafter claim that they have caused damage to his crops. Defendant supported his assertion by alleging an earlier action of the plaintiff where he untied his animals, took possession and demanded payment of GH¢ 150 for each animal. I find this allegation by defendant, in the absence of any corroborative evidence, to be highly improbable, and indeed, baseless and would therefore disregard it. Having disregarded the allegation of the defendant that plaintiff deliberately untied his sheep, took them home and thereafter demanded for compensation, I would accept the evidence of the plaintiff and find as a fact that, defendant released the two sheep to graze without supervision and thereby causing damaged to the crops of the plaintiff as shown in exhibits “A” and “A1”. Page 7 of 12 I would hold on the authority of the case of Chegu v. Dagomba referred supra that defendant committed trespass onto plaintiff’s land when he released his two sheep under his possession and control to go astray, leading to the damage to plaintiff’s crops. I would now proceed to examine the allegation of the defendant that the issue in controversy had been amicably resolved. He gave evidence to support this assertion by stating that he had smoked the piece pipe with the plaintiff by paying GH¢300 Cedis to him for the damaged caused to plaintiff’s crops. Plaintiff confirmed the settlement when he stated in his witness statement that “the matter was amicably settled after he had paid GH¢ 1,000 to defendant”. Plaintiff confirmed under cross examination that the matter was settled amicably but that defendant is yet to pay the amount agreed. This is what transpired when defendant cross examined the plaintiff: Ques: you called me at your uncle’s house and we amicable settled it Ans: We had the settlement but no payment was made. Ques: I put is to you that I paid 300 Ghana Cedis Ans: That is not true. Considering the evidence of the parties over the settlement, I am inclined to accept that the dispute relating to the two sheep of defendant causing damage to the plaintiff’s farm, has been amicably settled. Based on that settlement, no cause of action can arise out of the settled dispute. Page 8 of 12 The important question to ask is; why did plaintiff institute this action after the settlement? According to plaintiff, a week after the matter was amicably settled, he instituted the action against defendant before this court which led to an invitation by the police and placed in cells. I am of the view that the decision of plaintiff to bring this action, which had been amicably settled was actuated by malice and not based on an existing cause of action arising out of any dealings with defendant. That is, he is seeking not only to recover the GH¢ 1,000 he paid for the settlement but to receive compensate of GH¢ 5,000.00 for the crops and food staffs damaged by the defendant’s sheep. No cause of action can arise out of the settled dispute. Issue 2 i. whether or not plaintiff is entitled to compensation of GH¢ 5,000.00 being the value of food crops and food staffs destroyed by the defendant’s stray animals. Plaintiff is seeking for compensation of GH¢ 5,000.00 as damages for crops and foodstuffs destroyed by the sheep of defendant. If the court were to admit that there was a cause of action culminating in the action for compensation of GH¢ 5,000.00 for the crops and food staffs damaged by the defendant’s sheep, has the plaintiff led sufficient evidence to succeed with the claim? In answering the question pose, I refer to the earlier case of Chegu v. Dagomba which states the burden on plaintiff where there has been trespass to land by animal occasioning damage to crops. Page 9 of 12 His lordship stated at p.415 cattle trespass like trespass to land is actionable per se, that is without proof of actual damage, but where the trespass is to the produce of the land, it must be proved that the produce was either consumed or destroyed. Per the case, plaintiff is expected not only to prove the damage by exhibiting pictures and allege damage in order to seek for compensation of GH¢ 5,000.00 for the destruction. In fact the GH¢ 5,000.00 compensation amounts to special damages. What constitutes special damages and the requirement of proof was stated in the case of Oham v. Evonna [1992] 1 GLR 287-296. The High Court per Kpegah J, as he then was at page 290 provided a definition of special damages as is pointed out in Halsbury's Laws of England (3rd ed.), Vol. 11, p. 218, special damages are compensation for special damage which is not presumed by law to be the natural and probable or direct consequence of the act or omission complained of but which does in fact result in the circumstances of the particular case and of the injured party's claim to be compensated. His Lordship continued that ‘“Special damages’ . . . are such as the law will not infer from the nature of the act. They do not follow in ordinary course. They are exceptional in their character, and, therefore, they must be claimed specially and proved strictly.” This position is supported by the case of Royal Dutch Airlines (KLM) & Another v. Farmex Ltd [1989–90] 2 GLR 632-649 at page 632 that special damages must be specially pleaded and specifically proved. Finally, in Marfo & Others v. Adusei 1965 GLR 320-328 S.C at p.327 in my opinion, evidence should have been led to prove conclusively the bunches of plantain taken from the mortgaged farm and those from the farm illegally sold, to enable the learned judge to assess the damage suffered by the plaintiff in respect of the farm not covered by the mortgage. Page 10 of 12 Plaintiff was expected to particularise the claim for compensation in his statement of claim and thereafter lead sufficient evidence to establish the loss incurred due to the destruction. Although he filed a statement of claim per the order of court, he failed to particularise the special damage. He equally failed to justify why he was entitled to that amount as compensation. A mere claim of compensation of GH¢ 5,000.00 for the crops and food staffs damaged by the defendant’s sheep supported by pictures of damage do not meet the requirements for a claim special damages. Plaintiff’s claim for compensation of GH¢ 5,000.00 therefore fails. I have earlier stated and supported my position with case of Chegu v. Dagomba that trespass is actionable per se; that is, it is committed where there is entry unto land and does not require proof of damage to or things on the land. The plaintiff, under normal circumstances, would have been entitled to some damages upon failure to prove special damages. He would, however, not be entitled to damages because the matter giving rise to the present action, has been amicably resolved and therefore no cause of action can arise out of the settled dispute. Conclusion The court, per the Evidence Decree 1975 (NRCD 323) would, on the preponderance of probabilities, accept the evidence of the Defendant relative to that of the Plaintiff. Consequently, I shall dismiss the claim of the Plaintiff as without merit. Cost The award of cost is at the discretion of the court. The evidence clearly shows that plaintiff set out to re-litigate already settle dispute. Page 11 of 12 As a result, he has subjected the defendant to unnecessary litigation requiring him to use his resources, energy and time to defend the action. Based on the above, the court shall exercise its discretion to award defendant cost. I ward cost of GH¢ 1,000 for defendant. Order The Plaintiff’s claim against the Defendant for compensation of GH¢ 5,000.00 for the crops and food staffs damaged by the defendant’s sheep hereby dismissed. Cost of GH¢ 1,000 for defendant. Eugene Obeng-Ntim (District Magistrate) Page 12 of 12