AGYEI VRS AWUTA & ANOTHER (A2/276/2024) [2024] GHADC 644 (20 December 2024)

IN THE DISTRICT COURT HELD AT DAMBAI ON FRIDAY 20TH DECEMBER, 2024 BEFORE HIS WORSHIP ALHASSAN DRAMANI, ESQ. DISTRICT MAGISTRATE CASE NO: A2/276/2024 TAKPA AGYEI PLAINTIFF OF KWAME AKURA VRS 1.ALI AWUTA DEFENDANTS 2.DIBOH FULANI ALL OF YABRAM PLAINTIFF PRESENT 1ST DEFENDANT PRESENT 2ND DEFENDANT ABSENT --------------------------------------------------------------------------------------- JUDGEMENT The Plaintiff instituted this action against the Defendants for the following reliefs: 1. “Recovery of GH¢7,400.00 2. General damages for the inconveniences cause to the plaintiff since most of his crops on the farm have been destroyed by defendants’ cattle 3. Interest on the GH¢7,400.00 from October, 2023 till date of final payment. 4. Any other order or further orders as the court may deem fit. 5. Cost” When the Writ of Summons was served on the defendants the 2nd defendant failed to respond to same or appear before the Court to defend himself. Several hearing notices were served on him but he still failed to appear before the Court. The 1st defendant on his part filed a defence and denied the entire claim of the plaintiff. Order 25 r (2) (a) of the District Court rules 2009 C.I. 59 provides that: “Where an action is called for trial and a party fails to attend, the trial magistrate may (a) Where the plaintiff attends and the defendant fails to attend, dismissed the counterclaim, if any, and allow the plaintiff to prove the claim; IN RE WEST COAST INDUSTRY LTD ADAMS & TANDOH (1984-86) 2 GLR 361 and WATALAH VRS PRIMEWOOD PRODUCTS LTD (1973) 2 GLR 126 the principle stated was that where a party fails to respond to Court processes duly served on him, or avail himself for the hearing of the suit, the Court was entitled to proceed with the trial to its conclusion, make findings on the evidence led at the trial, make deductions and draw conclusions. On the strength of the above stated authorities, the plaintiff was allowed to prove his claim against the defendants. THE CASE OF THE PLAINTIFF The Plaintiff’s case was that he is a farmer at Kwame Akura near Dambai whilst the Defendants are cattle owners at Yabram. According to Plaintiff during the 2023 farming season he cultivated yam, cassava and maize on his farm and have been visiting the farm daily with his family and to work on it. According to Plaintiff one fateful morning he could not go to the farm but his wife and son visited the farm and whilst working, they saw a large number of cattle suddenly entering the farm and started destroying his crops. Plaintiff said he received a distress call from his wife so he rushed to the farm on his motor bike and on reaching the farm he saw some herdsmen driving the cattle away from the farm so he went to the police station and lodge a complaint against the herdsmen. The plaintiff called one witnesses as PW1. PW1 was Takpa Mathew a brother of the Plaintiff. He told the court that one day he was in the house when the Plaintiff told him that he got information from his wife that cattle were destroying his crops so he was rushing to the farm to ascertain the matter. According to PW1, Plaintiff later returned and told him that it was the Defendants’ cattle which caused the destruction to the farm. PW1 said the case was reported to the police and he accompanied the Plaintiff, the police and some Agricultural extension officer to the farm where the Agric officers access the damage to the farm. Thereafter, the Plaintiff brought his case to an end. THE CASE OF 1ST DEFENDANT According to 1st defendant, even though he owns cattle, his cattle never entered Plaintiff’s farm nor caused damage to his crops. 1st Defendant said some time ago, he was at the Dambai central mosque when the police came to arrest him and accused him of allowing his cattle to destroy Plaintiff’s crops. 1st Defendant said even though he immediately denied the accusation, he was detained in police custody for four days despite the fact that he is 79 years of age and sick of pneumonia. 1st Defendant stated that whilst he was in police custody, the Plaintiff threatened that unless he pays GH¢20,000.00 he will ensure that 1st Defendant was sent to prison. 1st Defendant further said he refused to pay the money because his cattle did not cause damage to Plaintiff’s farm. According to 1st Defendant he was later handcuff by the police and in the company of Plaintiff and other persons he was taken to a certain farm which the police claim was Plaintiff’s farm, where the police told him that they were conducting their investigation. 1st Defendant said the police later framed false charges against him and put him before court but upon realizing that he was innocent the police withdrew the charges against him so he was discharged by the court. 1st Defendant contended that his herdsmen went nowhere near Plaintiff’s farm let alone for his cattle to destroy Plaintiff’s crops. 1st Defendant did not call any witness hence closed his case after his evidence. The legal issue to be determined in this matter is whether defendants’ cattle cause damage to Plaintiff’s crops. The standard of proof in civil cases is on a balance of probabilities as per sections 11(4) and 12 of the Evidence Act, 1975 (NRCD, 323); and the general rule is that the burden of proof rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue. As held in the case of ABBEY & OTHERS v ANTWI [2010] SCGLR 17 at 27. The position of the law in civil cases is that “the standard of proof of allegations in civil cases is proof by preponderance of probabilities. It is only when crime is pleaded or raised in the evidence that the allegation sought to be proved must be proved beyond reasonable doubt. In the case of ADWUBENG v. DOMFEH [1997-98] GLR 281 the Supreme Court per Ampiah JSC held in holding 3 as follows; “Section 11(2) of NRCD 323 require proof beyond reasonable doubt only on the prosecution in criminal actions and in proof of a commission of a crime in any civil or criminal action. And Section 11(4) and 12 of NRCD 323 clearly provided that the standard of proof in civil actions, without exceptions, was proof by a preponderance of probabilities”. Also, in the case of DON ACKAH v. PERGAH TRANSPORT LTD & OTHERS [2010] SCGLR 728 at 736, the Supreme Court speaking through Adinyira JSC, (as she then was) held inter alia as follow: “It is basic principle of the law on evidence that a party who bears the proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim must fail. The method of producing evidence is varied and it includes the testimony of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence) without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the Court or tribunal of fact such as jury.” The crux of Plaintiff’s case was he was home when his wife called to inform him that cattle had invaded his farm causing damage to the crops so he rushed to the farm on his motor bike where he saw Defendants cattle being driven off his farm by the herdsmen. From Plaintiff’s evidence it is obvious that his wife and his son were present when the cattle entered the farm. It is also obvious that Plaintiff’s wife and son saw the cattle and the herdsmen. This means that Plaintiff’s wife and son are very key and material witnesses in this matter. Surprisingly however, the Plaintiff did not call even one of them to testify in support of his averment. In Oppong v Anarfi [2011] 1 SCGLR 556 PER Akoto Bamfo JSC and also Abed Nortey v African Institute of Journalism [2013 – 2014] 1 SCGLR 698 it was held that: “the law is settled that a material witness whose evidence would have assisted the court immeasurably if not called clearly dealt a big blow to the parties’ allegin’s case. In the instant suit since it was Plaintiff’s wife and son who allegedly saw the cattle causing damage to Plaintiff’s crops it would have been prudent for Plaintiff to call them as witnesses in support of his case. In my respectful view the evidence of these witnesses would have immeasurably helped this court in the determination of the matter. The Plaintiff’s failure to call his wife and son has therefore weakened his case. Plaintiff’s only witness (PW1) in his evidence told the court that on that fateful day, he was home when Plaintiff told him that he was rushing to the farm because he had information that cattle were destroying his crops. That when Plaintiff returned, he told him (PW1) that it was Defendants cattle which caused the destruction. This means that PW1 on that fateful day did not go to the farm with Plaintiff nor did he witness the destruction himself. His testimony is therefore based on what Plaintiff told him. PW1’s testimony is therefore nothing but hearsay. When plaintiff came under cross examination by 1st Defendant on 23/08/2024 the following transpired Q. Your case is that when you got to your farm on that fateful day you saw the herdsmen driving my cattle out of your farm not so A. Yes Q. Can you mention the names of my herdsmen to the court. A. I don’t know their names but I know them by face. Q. So when you got to your farm did you personally see my cattle destroying your crops A. No. Q. Do you know my cattle A. Yes Q. Do you agree with me that I am not the only one rearing cattle in the arear Q. Yes Q. I put it to you that the cattle you claim destroy your crops were not my cattle. A, That is not true. Q. Do you have photographs or video of my cattle destroying your farm A. No. Q. Do you have photographs of your farm showing the damage that was caused by the cattle. A. No Q. I put it to you that you don’t have any evidence that my cattle caused damage to your farm. A. That is not true. Q. You told this court that you saw my herdsmen driving the cattle out of your farm and so you went and reported the case to the police not so. A. Yes Q. How many were the herdsmen. A. They were about three in number. Q. Don’t you think you should have arrested at least one of them and hand him over to the police. A. I wanted to do so but they all run away. Q. Did they run away with the cattle or they left the cattle and run away. Q. They run away with the cattle. Q. I put it to you that you are not being truthful to the court. A. I dis agree with you From the above encounter, Plaintiff have admitted that he did not personally see the cattle destroying his crops. The Plaintiff further admitted that he does not have photographs either showing the cattle in his farm or the alleged destroyed crops. In my respectful view if the cattle indeed entered the Plaintiff’s farm and caused damage to his crops, it was possible for Plaintiff to provide photographs of at least the foot prints and fecal matter of the cattle on the farm. Apart from that the Plaintiff could have also exhibited photographs of the remaining portions of the crops after the destruction. In my view it is not possible for the cattle to have completely destroyed the crops, without one being able to see traces or the remaining portion of the destroyed maize, groundnuts and yam plants. The absence of these pieces of evidence in Plaintiff’s case further weakens his case. I find it also difficult to believe Plaintiff’s narration that the herdsmen altogether ran away with the cattle when he tried to arrest them. To say that the herdsmen ran away when he attempted to arrest them is quite understandable, but to claim that they ran away with such “large number” of cattle is quite unfathomable. From all the foregoing reasons I am not satisfied that the Plaintiff have made a good case against the Defendants. The Plaintiff has not been able to prove that it was the Defendants cattle which caused damage to his crops. In the case of Nartey v. Mechanical Lloyd Assembly Press Ltd [1987-1988] 2 GLR pg 314 Adade JSC stated that: ‘A person who comes to court, no matter what the claim is, must be able to make a good case for the court to consider, otherwise he must fail’. Having carefully examined the evidence before this court I find and accordingly hold that the Plaintiff have not been able to substantiate his claims against the Defendant. In the circumstances, the Plaintiff’s case is dismissed. I award costs of GH¢2000.00 in favour of Defendants against Plaintiff. SGD H/W ALHASSAN DRAMANI DISTRICT MAGISTRATE 20TH DECEMBER, 2024.