SEIDU VRS IDDRISU & ANOTHER (A5/07/2024) [2024] GHADC 641 (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. A5/07/2024 MOHAMMED SEIDU PLAINTIFF VRS 1. HARUNA IDDRISU @ BALERE DEFENDANTS 2. ALI BACHOJOR PLAINTIFF ABSENT REPRESENTED BY MOHAMMED FUSEINI DEFENDANTS PRESENT JUDGEMENT The Plaintiff herein claims against the Defendant for the following reliefs: (a) General damages of GH¢50,000.00 for malicious prosecution and unlawful arrest. (b) Any order or further order as the court may deem fit. (c) Costs. The Defendants denied liability of all the claims of the Plaintiffs and stated that they had a reasonable defence. THE CASE OF THE PLAINTIFF The Plaintiff’s case was that he is a herdsman and in April 2024 he went to Dormabin to meet a certain man by name Duray who had expressed interest in engaging Plaintiff as his cattle herdsman. According to Plaintiff whilst he was waiting for the said Duray in a drinking spot at Dormabin, the Defendants suddenly emerged and pounced on him and started beating him on the accusation that he Plaintiff had planned to kidnap one Awuta. According to Plaintiff some Police officers came in and the Defendants handed him over to the Police and whilst on their way to the police station, the police officers also continued beating him and forcing him to confess to the allegation of planned kidnap which he is innocent of. Plaintiff stated that at the police station the officers further subjected him to severe beatings. That he sustained injury and bled profusely from his nose and mouth. Plaintiff said he requested that the police take him to the hospital or give him a medical form to go to the hospital but the police refused to do so and kept him in custody for over a week. According to Plaintiff whilst he was in custody the defendants followed up and further questioned and threatened him to admit the offence else they will ensure that he rot in custody. Plaintiff said he does not own a mobile phone let alone to call someone on phone to threaten him with kidnapping. Plaintiff stated that he was later released by the police without any charge after they found that the allegation against him was baseless. Plaintiff told the court that after his release from police custody Duray, the cattle owner, who initially agreed to engage him as his herdsman refused to give him the job because of the serious nature of the allegation brought against him by the Defendants and all efforts made by him to secure a job from other cattle owners within the community have been unsuccessful because people in the community who heard the allegation now see him as a bad man. The Plaintiff called two witnesses as PW1 and PW2. PW1 was Abu Saliwu, he told the court that on one fateful Sunday which was a Dormabin market day, and which day also happened to be Eidul Fitr (Sallah) day, he was in a drinking spot with the Plaintiff when all of a sudden, the 1st Defendant walked in and grabbed Plaintiff on the colour of his shirt and started pulling him away. According to PW1 Plaintiff was in possession of a stick and 2nd Defendant collected the stick and started beating Plaintiff with it and the two forcibly dragged Plaintiff into Defendant’s shop nearby. PW1 said some two police officers later came, handcuffed Plaintiff and took him away. PW2 was Abdulai Iddrisu, he told the court that after Plaintiff’s arrest he went to the police station to bail him but was denied bail by the investigator. He further told the court that when he visited the Plaintiff at the Police station he realized that the Plaintiff had a reddish and a swollen lips and eye suggesting that he was tortured. PW2 told the court that after Plaintiff was released from custody, the cattle owner who initially agreed to engage Plaintiff as a herdsman refused to give him the job because of the allegation against Plaintiff by the Defendants. Thereafter, the Plaintiff close his case. THE CASE OF THE DEFENDANTS The 1st Defendant in his defence vehemently denied arresting or contributing to the arrest of the Plaintiff. According to 1st Defendant on one Dormabin Market Day which also happened to be a Sallah day he was at his store when one Fulani guy came and bought some drinks and bread and not quite long another guy came and sat by the first guy and he overheard the two saying that some police men had come to the market. He said the two later left the scene but when he looked around, he did not see any police man around. 2nd Defendant on his part told the court that on one fateful morning he was in his house when one man by name Awuta came to him and pleaded with him to accompany him to the police station to lodge a complaint because some unknown people are threatening to kidnap him if he does not pay ransom to them. According to 2nd Defendant he initially refused to assist Awuta but upon persistence he obliged and eventually went to the police station with Awuta to lodge the complaint and that was three days after Awuta initially approached him. 2nd Defendant said he went to the police station with Awuta because Awuta does not understand the Twi language so he went to serve as an interpreter to Awuta. 2nd Defendant further stated that two weeks after Awuta had reported the case, the police arrested the Plaintiff and some other persons who were alleged to be involved in the plot to kidnap Awuta. According to 2nd Defendant he went to the police station whilst Plaintiff was in custody but his presence there was for other reasons and not connected to the arrest of Plaintiff. The Defendants called two witnesses as DW1 and DW2 who are both neighbors of 2nd Defendant. DW1 told the court that he was present when Awuta came and pleaded with 2nd Defendant to accompany him to the police station to lodge a complaint because he Awuta does not understand the Twi language. PW1 said 2nd Defendant initially refused to go with Awuta but upon persistence he accompanied Awuta to the police station at about. DW2’s evidence was the same as DW1. He said he was present when Awuta came and pleaded with 2nd Defendant to accompany him to the police station. The Defendants thereafter closed their case. The legal issues to be determined by this court are: (i) Whether the Defendants instituted criminal action against Plaintiff. (ii) Whether the matter was terminated in favour of Plaintiff. (iii) Whether Defendants acted in bad faith or without reasonable or probable cause. (iv) Whether Defendant acted maliciously. (v) 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.” Issue one is whether Defendants instituted criminal action against the Plaintiff. On this, the Plaintiff must prove that the Defendants 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 the Dormabin market when the Defendant’s suddenly pounced on him and accused him of planning to kidnap one man called Awuta. That they arrested him and subjected him to severe beating and then dragged him into 1st Defendant’s shop and later handed him over to the police. The Defendants have both denied this assertion. Whilst first Defendant denied ever arresting the Plaintiff, 2nd Defendant told the court in his evidence that he only accompanied one Awuta to the Police station to report the case, because Awuta does not understand any local language. PW1 in his evidence stated that he was present when the Defendants arrested Plaintiff. He vividly described what transpired as follows: “That day in question was Sunday, a market day at Dormabin. I met Plaintiff at the drinking spot and we were dancing because it was Eidul Fitr. 1st and 2nd Defendants came to the spot and without any provocation, 1st Defendant advanced towards Plaintiff and held him by the colour of his shirt and dragged Plaintiff from the spot. Plaintiff was holding some stick which was taking away from him by 2nd Defendant and whilst 1st Defendant was dragging him along, 2nd Defendant was whipping him with his own stick…” The evidence of PW1 was not controverted in anyway during the trial. The Defendants witnesses DW1 and DW2 only told the court that they were with 2nd Defendant when Awuta came to ask 2nd Defendant to accompany him to the Police Station to make a complaint. Under cross examination by Plaintiff both defence witnesses admitted that they were not at the Dormabin market when the Plaintiff was arrested. Below was what transpired between Plaintiff and DW1 and DW2 on 11/09/2024. DW1 Q. In your witness statement you stated that you were present when Awuta asked 2nd Defendant to accompany him to the police station to lodge a complaint not so. A. Yes Q. Were you also present at the Dormabin market when the defendants arrested me. A. No. Q. Were you present when the defendants were beating me at the Dormabin market after my arrest A. No. Q. Do you know that the so call Awuta never came to the police station after my arrest. A. I cannot tell Q. Do you know that the defendants followed up to the police station after my arrest. A. No. Q. I put it to you that at the police station the 2nd defendant asked the police to torture me if not I was not going to confess. A. I can’t tell. Q. I further put it to you that the 2nd defendant in the presence of the police took his turn to interrogate me and threatened that if I refuse to confess he will make sure I rot in jail but I stood my grounds. A. I wasn’t there so I can’t tell Q. I Put it to you that you don’t know anything about this case. A. It is not everything about the case I know. All that I know is what I told the court. DW2 Q. Did you follow 2nd defendant and Awuta to the police station. A. No A. Do you know that Awuta never came to the police station during my stay in police custody. A. I don’t know Q. Were you present when I was arrested by the defendants A. No Q. I put it to you that you don’t know anything about this case. A. What I know is what I told the court. The Plaintiff stated that he was detained for a week and was released unconditionally without a charge and since his release he has never been invited again or charged with any offence. In the case of Soadwah v. Obeng (1966 GLR 338) it was held that: The requirement is that the Plaintiff must establish that the Defendant actively instigated the prosecution or was instrumental in getting the proceedings going. If the Defendant merely reported the matter to the police who do their own investigations before charging the Plaintiff, the Defendant is not liable The Plaintiff testified that whist he was in custody, the defendants followed up to the police station. That the 2nd Defendant also questioned him whilst he was still in the cells and promised to secure his release if he admits the offence else he will rot in custody but he maintained his position that he innocent. 2nd Defendant admitted he went to the police station after Plaintiff’s arrest. He also admitted speaking with Plaintiff whilst Plaintiff was in custody but added that he went there for a different purpose and not to follow up on Plaintiff’s case or assist the police in their investigation. The 2nd Defendant however failed to tell the court the specific reason for which he visited the police station. From the evidence, the Plaintiff was arrested in broad day light on that fateful day. He was arrested in the presents of PW1 and both Plaintiff and PW1 vividly saw those who arrested Plaintiff. From the evidence I find that it was the Defendants who arrested the Plaintiff at the Dormabin market. The arrest took place in broad day light and hence the Plaintiff could not have fallen into a mistake as to who actually arrested him. I also find that the 2nd Defendant’s assertion that he only accompanied Awuta to the police station to lodge a complaint as a fabrication. If Awuta was indeed the complainant, one expected the 2nd Defendant to call Awuta to testify in his favour but this, he failed to do. In my respectful view Awuta never made any complaint to the Police against the Plaintiff and that is why the Defendant could not call him to testify. In Oppong v Anarfi [2011] 1 SCGLR 556 per Akoto Bamfo JSC and also Abed Nortey v. African Institute of Journalism [2013-14] 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 alleging’s case. In the instant case since it is the defendants who are alleging that it was rather Awuta who caused the arrest of the Plaintiff and not them, it was incumbent on them to call the said Awuta to testify in their favour. But they failed to do so. The record also showed that the 2nd defendant in particular went to the police station whilst the plaintiff was in custody and even took his turn questioning and interrogating the plaintiff and tried to intimidate him to admit the offence so that he could be granted bail. From the evidence on record I find that the Defendants were very instrumental in the arrest of Plaintiff. Issue two is whether the case was terminated in favour of Plaintiff. For Plaintiff to succeed he must prove that he has been acquitted and discharged of the offence. The Plaintiff’s case was that he was arrested in April, 2024 and detained in police custody for over one week before he was unconditionally released. Plaintiff said he was never arraigned before court and has never been invited by the police since then. The arrest and detention of the Plaintiff is not in doubt. From the evidence on record it has been about eight months now since the Plaintiff was released from police custody. The offence of preparation to commit crime to wit kidnapping is a serious offence. In my view if the allegation against the Plaintiff was indeed true eight months without a charge or further invitation by the police is unreasonably a long time. In my candid view this suggests that the police has not established any wrong doing against the Plaintiff hence their inability to continue with the case. In the circumstances I find that the matter has been terminated in favour of the Plaintiff. I have elected to deal with issues three and four 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 (1962) 1 ALL E.R. 696 it was 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 a drinking spot with PW1 when the defendants arrested him subjected him to beatings and accused him of planning to kidnap one Awuta. In his defence, 2nd defendant told the court that the information he had from Awuta was that the plaintiff called Awuta on phone and demanded a ransom of GH¢20,000.00 failure which he Awuta will be kidnapped. The Plaintiff have denied this allegation insisting that he does not even own a mobile phone let alone to call Awuta to demand for ransom. There is no evidence on record suggesting that at the time of his arrest the Plaintiff was planning or in the process of committing any offence yet the defendants arrested him and subjected him to inhumane treatment. From the record I find that the behaviour of the Defendants was not only unjustified but also without reasonable and probable cause. 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 (1698) 88 E.R. 1267 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 tortured by both the Defendants and the Police. The Plaintiff’s assertion was corroborated by both PW1 and PW2. Plaintiff said he was further detained in custody for over a week. Plaintiff mention that after his arrest Duray who was earlier ready to engaged him as a herdsman has refused to engage him again because he was doubtful of Plaintiff’s character following the allegation against him by the Defendants. From all the foregoing I am convinced that the Plaintiff has suffered an injury following his arrest by the Defendants and the subsequent police action. It is on the strength of the authorities as applied to the totality of the evidence adduced in this case, by the Plaintiff, that I found the evidence as reliable and probable on the balance of probabilities. Flowing from the above, I accordingly enter judgment in favour of Plaintiff as follows: 1. General damages of GH¢30,000.00 is awarded in favour of Plaintiff against the Defendants. I also award cost of GH¢5000.00 against the Defendants in favour of the Plaintiff. SGD H/W ALHASSAN DRAMANI DISTRICT MAGISTRATE 20TH DECEMBER, 2024.