IDDRISU VRS DANDADI (A5/08/2024) [2024] GHADC 643 (20 December 2024)

IN THE DISTRICT COURT HELD AT DAMBAI ON FRIDAY 20TH DECEMBER 2024 BEFORE HIS WORSHIP ALHASSAN DRAMANI, ESQ. DISTRICT MAGISTRATE SUIT NO. A5/08/2024 SURAJU IDDRISU @ SERIOUS MAN PLAINTIFF OF KPAREKPRE VRS ALI DANDADI @ ALI BACHOJOR DEFENDANT OF KPELEMA PARTIES PRESENT JUDGEMENT The Plaintiff herein per his amended writ of summons claims against the Defendant the following reliefs: (a) “A declaration that the statement made by defendant to wit ‘that plaintiff is planning to kidnap one Awuta unless he pays an amount of GH¢20,000.00 and base on which defendant instigated plaintiff’s arrest is wrongful and defamatory’. (b) General damages of GH¢30,000.00 for malicious prosecution and unlawful arrest (c) Cost”. The Defendant denied liability of all the claims of the Plaintiff and stated that he had a reasonable defence. THE CASE OF THE PLAINTIFF The Plaintiff’s case was that he is a taxi driver at Kparekpare near Dambai. According to Plaintiff on 15th April, 2024 at about 12:30am he heard a knock on his door and when he opened, he realised that it was the defendant who had led police officers to his house. Plaintiff said he was arrested by the police in the presence of his family and other neighbors and that when he asked them of his offence, he was told to wait till they get to the police station. Plaintiff stated that the defendant made a false accusation against him that he Plaintiff had called a certain man by name Awuta and threatening to kidnap Awuta, if Awuta fail to pay GH¢20,000.00 to him. Plaintiff said he was placed in police custody till the next day before he was released on bail. Plaintiff said Awuta never came to the police station whilst he was in custody. According to Plaintiff the police took his mobile phone and conducted their investigation but could not link him to any crime and hence he was released without any charge and that whilst he was in custody the defendant came to him and tried convincing him to admit the offence but he refused to do so. Plaintiff further stated that it was the Defendant who instigated his arrest and this has dented his image and reputation in the community. Plaintiff added that the defendant knew that he had committed no offence yet instigated and used the police to tarnish his hard-won image. According to Plaintiff news of the kidnap allegation and his subsequent arrest has spread in the community and people in the community now refer to him as a criminal and as such are not willing to patronize his services as a commercial driver. The Plaintiff called one witness as PW1. PW1 was Saani Mohammed Amadu a brother of Plaintiff, he told the court that on 15th April, 2024 at about midnight he was awoken from his sleep by another brother who told him about the arrest of the Plaintiff. PW1 said later that morning he followed up to the police station and upon enquiries he was told by the arresting officers that it was the Defendant who ask them to arrest Plaintiff because the Plaintiff is involved in a case of kidnapping. PW1 added that he went to the cell and questioned Plaintiff about the allegation but the Plaintiff denied any involvement in the alleged kidnapping case. PW1 stated that he later secured bail for the Plaintiff after a back and forth with the police. According to PW1 the allegation against the Plaintiff and his subsequent arrest has spread within and beyond the community and the Plaintiff is being treated with disdain and scorn. Thereafter, the Plaintiff close his case. THE CASE OF THE DEFENDANT The Defendant in his defence vehemently denied defaming or causing the arrest of Plaintiff. According to Defendant it was one man by name Awuta who reported to him that he had received a call from someone who threatened to kidnap him but because he Awuta cannot speak the Twi language he wants Defendant to accompany him to the police station to lodge a complaint. Defendant said he only assisted Awuta as an interpreter to make a report at the police station. The Defendant called two witnesses as DW1 and DW2. DW1 Adamu Mohammed, told the court that he was present when Awuta came and pleaded with Defendant to accompany him to the police station to lodge a complaint because he Awuta does not understand the Twi language. DW2, Suleman Abdulai’s evidence was brief and materially the same as DW1. He said he was present when Awuta came and pleaded with Defendant to accompany him to the police station to make a complaint. The Defendant thereafter closed his case. The legal issues to be determined by this court are: (i) Whether defendant made defamatory comment against Plaintiff. (ii) Whether the Defendants instituted criminal action against Plaintiff. (iii) Whether the matter was terminated in favour of Plaintiff. (iv) Whether Defendants acted in bad faith or without reasonable or probable cause. (v) Whether Defendant acted maliciously. (vi) Whether the Plaintiff suffered injury or any kind of damage. In every civil case, the general rule is that the burden of proof rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of his case. In the case of Lamptey alias Nkpa v. Fanyie & Others [1989-90] 1 GLR 286, the Supreme Court held that: “On general principles, it was the duty of a plaintiff to prove his case. However, when on a particular issue he had led some evidence, then the burden will shift to the defendant to lead sufficient evidence to tip the scale in his favour”. This is provided under section 14 of the Evidence Act, 1975 (NRCD 323). It is further provided in Section 11 and 12 of the Evidence Act, (1975 NRCD 323) as follows: “11(4) in other circumstances the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its non-existence. 12 (1) excerpt as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities.” 12 (2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.” 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 that: “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, 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 first issue for consideration is whether the defendant made defamatory comment against the Plaintiff. The plaintiff’s case is that the defendant made the statement to wit: “…plaintiff is planning to kidnap one Awuta unless he pays an amount of GH¢20,000.00 to plaintiff…” This is the basis on which the plaintiff brought his case against the defendant. In the case of Owusu-Domena v. Amoah [2015-2016] 1 SCGLR 790 at page 802, the Supreme Court in holding 4 stated as follows: “That the elements which a plaintiff in a defamatory suit must plead and lead evidence on in order to succeed are as follows: a. That there was a publication by the Defendant b. That the publication concerned the Plaintiff c. That the publication was capable of defamatory meaning in the ordinary sense. d. Alternatively, or in addition to (c) above that the facts and/or circumstances surrounding the publication was defamatory of the plaintiff; and e. If the Defendant seeks for the defence of qualified privilege or fair comment that Defendant was actuated by malice. And malice in such matters would be said to exist if there was spite, or ill will on the part of the defendant or if the court found indirect and improper motive against the defendant in publishing the words complained of.” From the evidence on record the plaintiff stated that the defendant led the police to arrest him on the allegation that the plaintiff was planning to kidnap one Awuta. The defendant has denied this assertion. The plaintiff has not produced any evidence to indicate where the defendant made this alleged statement and in the presence of who. In my respectful view reporting an alleged offender to the police or leading the police to arrest an alleged offender alone is not enough to prove defamation. For the above reason I find that the plaintiff has failed to prove his claim that the defendant made a defamatory comment or statement against him. I shall now deal with issues two and three together i.e. whether Defendant instituted criminal action against the Plaintiff and whether the case was terminated in favour of plaintiff. On the first part, the Plaintiff must prove that the Defendant initiated prosecution against him. This means that the Plaintiff must prove that the Defendant himself conducted the prosecution or procured, instigated, ordered or was actively instrumental in the prosecution being set in motion. Plaintiff’s evidence was that he was at his house when the Defendant led the police to arrest him for allegedly planning to kidnap one Awuta. Even though defendant denied that he was the one who caused the arrest of plaintiff he admitted that he accompanied Awuta to the police station to serve as an interpreter for Awuta to lodge a complaint in respect of kidnaping. PW1 in his evidence corroborated the assertion of the plaintiff. He told the court that when he went to the police station after the arrest of plaintiff he was told by the police that it was the defendant who asked them to arrest the plaintiff because the plaintiff’s name was mentioned in a previous kidnaping case. From the evidence on record both DW1 and DW2 told the court that they were present when Awuta came to ask defendant to accompany him to the police station to lodge a complaint. But they admitted that they did not go to the police station with defendant and Awuta. Both PW1 and plaintiff told the court that at all material times that plaintiff was in police custody the defendant was present at the police station and spoke with plaintiff whilst he was in custody in an attempt to convince him to admit the offence. The defendant did not deny that he was at the police station. He did not also deny speaking to the plaintiff. He however stated that he was only trying to assist Awuta make his case at the police station. It is however instructive to state that both plaintiff and PW1 have denied ever seeing or meeting Awuta at the police station during plaintiff’s stay at the police station. In Bank of West Africa Ltd v. Ackun [1963] 1GLR 176] It was held that when sufficient and credible evidence is adduced by a Plaintiff in proof of his case, then the evidential burden shifts to the defendant to lead sufficient evidence to tip the scales in its favour. The position is also provided for under Section 11(4) of the Evidence Act 1975 NRCD 323, From the evidence there is no doubt that the defendant had something to do with plaintiff’s arrest. Under the circumstances since the defendant alleged that it was Awuta who made the case of kidnapping against the plaintiff leading to his arrest, it was incumbent on him to call Awuta as his witness since Awuta’s evidence would have helped to clear any doubt as to who actually engineered the arrest of the plaintiff. In my respectful view the defendant’s failure to call Awuta to testify in his favour is not only detrimental to his case but suggest that he is not being truthful to the court. If Awuta was indeed the one who instigated the arrest of the plaintiff then the plaintiff should not have any difficulty in getting Awuta to testify in his favour. For the ongoing reasons I find that it was the defendant who instigated the arrest of the plaintiff. I further find that the defendant did not only instigate the arrest but was very instrumental in the entire process. The plaintiff told this court that after his arrest he was unconditionally released by the police and has since not been charged with any offence or invited to the police station. From the evidence on record the plaintiff’s assertion has not been controverted in any way. On the ongoing I find that the inability of the police to prefer any charge against the plaintiff since the past eight months or at least invite him for further investigation is a testimony that there was no basis for the arrest of the plaintiff and hence the entire process was terminated in his favour. I shall with deal with issues four and five together that is whether Defendants acted in bad faith or without reasonable or probable cause/Whether Defendant acted maliciously. Here the Plaintiff must prove that the Defendants prosecuted him without reasonable and probable cause. The Plaintiff may establish that in one of two ways. By showing that: a) The prosecutor (whether the Defendant himself or herself or a surrogate in law) had no honest believe in the Plaintiff’s probable guilt when he prosecuted him; or b) The prosecutor had such believe but that the facts would not lead an ordinarily prudent and cautious person to that conclusion i.e, the Plaintiff was rash in his judgment. Also, the Plaintiff must prove that the Defendant was actuated by malice in prosecuting him. Malice covers not only spite and ill-will but also any motive other than a desire to bring the criminal to justice. In the case of Glinski v. Mcber Lord Devlin held that malice relates to the prosecutor’s motive. This means that the prosecutor must have been with ill-will or spite. Prosecution of the Plaintiff on any motive other than bringing him to justice is malice. The Plaintiff case is that he was at home when the defendant led the police to arrest him and when he demanded to know his offence he was told to wait until the get to the police station. Even though the defendant has denied plaintiff’s assertion, PW1 corroborated the account of plaintiff. PW1 stated that when he went to the police station he was told by the police that it was the defendant who asked them to arrest the plaintiff. The defendant did not lead any contrary evidence to this assertion. In Tonado Enterprises v. Chou Sen Lin (2007 -2008) SCGLR 135, it was sated that: “corroborated evidence is to be preferred to an uncorroborated one” On the above reason I will prefer Plaintiff’s corroborated testimony to Defendant’s uncorroborated account. I have carefully considered the evidence on record and have not seen any evidence suggesting that at the time of his arrest the Plaintiff was planning or in the process of committing any offence yet the defendant instigated his arrest and detention. In the circumstances I find that the conduct of the defendant was not only unjustified but also without any reasonable basis. The final issue is whether Plaintiff suffered any injury. The Plaintiff must prove damage as a result to succeed. In the case of Saville v. Roberts it was held that there are three sorts of damages any one of which is sufficient to support the action. a) Damages to his name (i.e. necessarily and naturally affects the fair fame of the person) if he is accused of scandalous matter; b) Damage to his person where he could lose his life, or liberty (if he is, for example, imprisoned); and c) Damage to his property, if he is made to incur charges and expenses for his defence. The Plaintiff’s case was that he was arrested and detained till the following day and that news of his arrest have spread in his community and beyond and as such his service as a commercial driver is not being patronized because people now see him as a criminal who cannot be trusted. Plaintiff’s evidence that he is a commercial driver was not controverted in any way. In fact, when DW2 came under cross examination he confirmed plaintiff’s assertion that he is a driver. The following was what transpired. Q. I put it to you that I don’t know you A. That is not true. I know you Q. How do you know me. A. You are a commercial driver at Dormabin. Sometime ago we hired your services and you convey us and our cattle to Abotoase. Q. I put it to you that you would not have hired my services if you knew that I was a criminal as suggested by the defendant. A. That is true. Q. I further suggest to you that now that defendant has labeled me as a criminal you will not be ready to hire my services again as a driver. A. That is true because I can no longer trust you. Everyone is afraid of you not only me. Q. I further put it to you that the defendant has tarnished my image by lying to the police that I am planning to kidnap someone. A. That is between you and the defendant. From the above encounter the plaintiff’s claim that he is a commercial driver is not in doubt. Similarly, from the above encounter it is obvious that plaintiff’s name and fame has suffered a heavy damage and injury due to the allegation of kidnap. On the ongoing reasons I accordingly enter judgment in favour of Plaintiff as follows: 1. General damages of GH¢20,000.00 is awarded in favour of Plaintiff against the Defendant. I also award cost of GH¢5,000.00 against the Defendant in favour of the Plaintiff. SGD H/W ALHASSAN DRAMANI DISTRICT MAGISTRATE 20TH DECEMBER, 2024.