BONDAN VRS TAKAN & ANOTHER (A2/01/2023) [2024] GHADC 552 (26 November 2024)

IN THE DISTRICT COURT SITTING AT WULENSI IN THE NORTHERN REGION OF GHANA ON 26TH NOVEMBER, 2024 BEFORE HIS WORSHIP, GODSON ETSE KUMADO, ESQ. THE DISTRICT MAGISTRATE SUIT NO: A2/01/2023 ONIMKPUL BONDAN ] SUING THROUGH HIS LAWFUL ATTORNEY ] PLAINTIFF FRANK BITILAR BONDAN ] VRS 1/ NILIYUNG TAKAN ] 2/ KPAMBII KOBI ] DEFENDANTS _________________________________________________________________ JUDGMENT _________________________________________________________________ INTRODUCTION The Plaintiff originally took the instant action against the 1st Defendant herein and one Ali as 2nd Defendant. The Court differently constituted, however struck out the name of the said Ali upon the prayer by the 1st Defendant that he was his employee taking care of his cattle. It was then ordered that the 2nd Defendant herein be joined to the suit since 1st Defendant claimed he is the owner of the land in dispute. By his writ of summons, the Plaintiff claims the following reliefs against the Defendants: 1. Cash the sum of six thousand two hundred Ghana cedis (GH¢6,200) being the cost of destruction of 1.5 acres of his yam and maize farm. Page 1 of 29 2. An order directed at the 2nd Defendant to vacate his farmland perpetually. 3. General damages including other incidental expenses of GH¢700. THE CASE AND EVIDENCE OF THE PLANITIFF By his summary of subject matter of claim, the Plaintiff says both parties are resident in Gbungbaliga and are farmers but the 1st Defendant also owns cattle. In July, 2021 the 1st Defendant brought the original 2nd Defendant (Ali) with cattle to settle on the uncultivated section of his farmland about 10-15 meters from his yam farm. The activities of the Defendants’ cattle resulted in the complete destruction of one and half acres of his three acre yam farm. According to the Plaintiff, he summoned the 1st Defendant before the Assemblyman of Gbungbaliga and charged him to pay him compensation of GH¢6,200 for the destruction of his yam farm but the 1st Defendant only offered to pay GH¢500. He reported to the Police but 1st Defendant insisted he will pay only GH¢750 hence the instant action. The Plaintiff testified per his lawful attorney, Frank Bitilar Bondan and called three other witnesses to testify in support of his case. By his witness statement which was adopted as his evidence in chief, the Plaintiff’s attorney testified that in July, 2021 the 1st Defendant brought a Fulani man by name Ali Omaru to settle and his land. On the 19th of September, 2021, the cattle of the completely destroyed his maize farm and the Plaintiff summoned the 1st Defendant before the Assemblyman and elders of the area. The 1st Defendant however declined to pay for the destruction of his maize crops. On 27th September, 2021 Ali Omaru came to his to house and informed him that the cattle has destroyed his yam farm. He summoned the 1st Defendant before the Assemblyman of the area the next day and charged him to pay an amount of GH¢6,200 for the destruction of his crops. The 1st Defendant however offered to pay only GH¢500. He later reported the matter to the police but the 1st Defendant again offered to pay only GH¢750. Plaintiff’s lawful attorney stated that he Page 2 of 29 assessed the damage of the destruction of his farm crops and the 1st Defendant as the owner of the cattle is liable to pay the GH¢6,200 he is claiming from him. According to his testimony, the land in dispute belongs to the Plaintiff’s father, Bondan Nuri who was the first to farm on the disputed land since the year 1931. After his death in 1988 the Plaintiff took over the land and continued farming on same. At the time the 1st Defendant lived in a village called Mojado and at the time he migrated to Gbugbaliga B, all the lands have been occupied. According to the Plaintiff’s attorney therefore, all the farmlands of the 1st Defendant were lands which had already been cultivated. In his bid to describe the land in dispute, the Plaintiff’s attorney testified that the land is about eleven (11) acres of which two (2) acres is occupied by “Alula” trees. He planted mango trees on one side and a “dawadawa” tree grew on the other side. According to the Plaintiff, out of the 11 acres of the land owned by him, the Defendants are only making claim to a one acre portion situate in the middle of the 11 acre land. THE CASE AND EVIDENCE OF THE DEFENDANTS By his amended witness statement, the 1st Defendant stated that the Plaintiff is a member of his extended family while the 2nd Defendant is his paternal uncle. According to him, he was informed by his father that he and his brother, Kobi Danaa migrated from Saboba in the 1950 to settle with his brother by name Boi for farming purposes. Boi took them to the chief of Gbungbaliga at the time, Naa Wumbei who granted them the lands at Gbungbaliga No.2 to settle and farm thereon. In appreciation they also presented to the Chief a guinea fowl and twelve (12) tubers of yam. According to his testimony, the land granted to his father is bounded by the following communities: to the east Kajarso and Kpatoe; to the north by Banayil and Tekayido; to the Page 3 of 29 south by Mojado and Kpanyasi; and to the west by Gbungbaliga No.1. His late father and brother took possession of the land granted to them until their demise. He grew up and saw his father farming and rearing cattle on the land without any disturbance from any person. He and his siblings inherited the land after the passing of his late father. The 1st Defendant continued that his father told him the Plaintiff’s father migrated from Togo and came to settle with them at Gbugbaliga No.2. His father did not however introduce the father of the Plaintiff to the chief because he was a member of family who came to live with them. The 1st Defendant further testified that he was invited by the head of community pursuant to a complaint lodged to him by the Plaintiff of his cattle causing destruction to his maize and yam farm in the night. There he asked the Plaintiff to identify the cattle that caused the damage to his crops, and why he did not drive the cattle to him to show that they were his since he is not the only person having cattle in the community. The Plaintiff not satisfied, reported the matter to the Assemblyman of the area and he posed same questions to the Plaintiff. The Assemblyman then reported the matter to the Police where the Plaintiff demanded GH¢6,200 as compensation for the damage caused to his farm by the cattle. The Police went with them to the farm where they counted only twenty-eight (28) yam mounds which were destroyed by the cattle. The 1st Defendant stated that he refused to pay the money demanded by the Plaintiff because the Plaintiff could not identify that the cattle that caused the damage to his farm were his. According to the 1st Defendant, the Plaintiff inflicted cutlass wounds on two of his cattle and he had to spend an amount of GH¢890 to treat the animals. The 1st Defendant concluded his testimony and stated that one hundred tubers of yam at the Wulensi market costs GH¢600 and so he wonders how the Plaintiff arrived at the GH¢6,200 he claims. Page 4 of 29 On his part the 2nd Defendant testified that he was with his father, Danaa and the father of the 1st Defendant at the time they came to settle at Gbugbaliga NO.2 from Saboba. They were received by Bio who also introduced them to the chief of Gbungbaliga and the chief granted them the disputed land. They in turn presented a guinea fowl and twelve (12) tubers of yam to the chief and every year they farm for the chief. It was later the father of the Plaintiff migrated from Togo and came to settle with them and they gave to him a portion of the land granted them to farm and feed his family. 2nd Defendant further testified that the cattle of the 1st Defendant has been on the land for more than 30 years without any hindrances. According to him, in October 2021 the Plaintiff lodged a complaint to him against the 1st Defendant that his cattle destroyed his crops. He invited the 1st Defendant who asked the Plaintiff whether he saw the cattle cause damage to his crops in the night. The 1st Defendant also told the Plaintiff he could have driven the cattle to him to confirm that they were his since he was not the only person who owns cattle in the community. The Plaintiff dissatisfied reported the matter to the Assemblyman and charged the 1st Defendant to pay GH¢6,200 as damages for the destruction of his crops. The Defendants in support of their case called two other witnesses to testify. ISSUES FOR DETERMINATION From the respective cases of the parties, the issues for determination by the Court are as follows: 1/ Whether or not the 1st Defendant’s cattle caused damage to the Plaintiff’s crops. 2/ Whether or not the Plaintiff is entitled to damages of GH¢6,200 from the 1st Defendant for the destruction of his crops. Page 5 of 29 3/ Whether or not the Plaintiff is the owner of the disputed farmland. BURDEN OF PROOF In a civil case such as this, the burden is on the Plaintiff to prove his claims on the balance of probabilities. He discharges this burden on him by adducing sufficient evidence so that the court may be convinced, on a consideration of all the evidence, that what he avers is true. This is the basic requirement of the provisions of Sections 10 and 11 of the Evidence Act, 1975 (NRCD 323) defines what it means by burden of persuasion and burden of producing evidence. The relevant provisions are reproduced as follows: 10. Burden of persuasion defined (1) For the purposes of this Act, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the Court. (2) The burden of persuasion may require a party (a) to raise a reasonable doubt concerning the existence or non-existence of a fact, or (b) to establish the existence or non-existence of a fact by a preponderance of the probabilities or by proof beyond a reasonable doubt. 11. Burden of producing evidence defined (1) For the purposes of this Act, the burden of producing evidence means the obligation of a party to introduce sufficient evidence to avoid a ruling on the issue against that party. Page 6 of 29 (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence. Section 12 is on the standard of proof required in civil cases which is proof on the preponderance of probabilities. It has been held that the nature of the averment determines the nature of the proof required. However where a party makes an averment which is capable of proof in any way, then he must adduce the requisite evidence to substantiate his claim else his claim must fail. See the case of ZABRAMA v SEGBEDZI (1991) 2 GLR 221-247 where the Court held that: “[A] person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.” Also relevant to our discussion on the burden of proof is the case of DON ACKAH v PERGAH TRANSPORT [2011] 31 GMJ 174 where the Court noted per Adinyira JSC that: It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies 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 a jury. It is trite law that matters that are Page 7 of 29 capable of proof must be proved by producing sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. In the instant case, the Plaintiff claims the 1st Defendant’s cattle destroyed his farm crops. This has been denied by the 1st Defendant who claims he is not the only person who rears cattle in the community. To entitle the Plaintiff to damages for the destruction of his farm, he must be able to establish that it were the 1st Defendant’s cattle that destroyed his crops. The Plaintiff also claims special damages of GH¢6,200 from the 1st Defendant. As will be seen shortly from the case law, the Plaintiff is required to prove not only that it was 1st Defendant’s cattle that caused the damage to his crops, but that the damage caused amounts to GH¢6,200 in value. The Plaintiff also seeks an order against the 1st Defendant to remove his cattle from his lad. The burden is therefore on the Plaintiff, in order to succeed, to establish that he is the owner of the farmland in dispute. EVALUATION OF THE EVIDENCE AND DTERMINATION OF THE ISSUES ISSUE ONE: WHETHER OR NOT THE 1ST DEFENDANT’S CATTLE CAUSED DAMAGE TO THE PLAINTIFF’S CROPS It has been the case of the Plaintiff that the cattle of the 1st Defendant destroyed his maize and yam crops. His lawful attorney testified and stated that the Fulani man of the 1st Defendant informed him that the cattle have destroyed his crops. In support of his case the Plaintiff called Nkanyi Nawir (PW1), Liyajol Boyika (PW2) and Yamba Mbalei (PW3) to testify. Page 8 of 29 PW1 testified that he was an eye witness to the destruction of Plaintiff’s crops by the 1st Defendant’s cattle. He further stated that the Plaintiff called the 1st Defendant before the Assemblyman and the elders of the community and charged him to pay GH¢6,200 for the destruction of his crops but the Defendant refused and rather told the Plaintiff he could take him to wherever he likes. The testimonies of PW2 and PW3 are substantially the same as that of PW1 in that they also testified that they are eye witnesses to the destruction of the Plaintiff’s farm by the 1st Defendant’s cattle. In further proof of his case, the Plaintiff has attached a picture of his said farm to indicate the extent of damage caused to his crops by the 1st Defendant’s cattle. On his part the 1st Defendant denied the allegations by the Plaintiff that it was his cattle that caused the damage to his crops. According to his testimony, when the Plaintiff summoned him before the Assemblyman and the elders of the community as well as at the police station, he asked the Plaintiff whether he was able to identify the cattle and why he did not drive them to him to prove that they were his. He added that he is not the only person rearing cattle in the community. Counsel for the Defendants in his closing address to the Court submitted that the Plaintiff has failed to prove that the cattle which destroyed his crops were for the 1st Defendant. He argued that the 1st Defendant is not the only person rearing cattle in the community. He also argued that the Plaintiff failed to call neither the Fulani man nor the Assemblyman as a witness in support of his case. He further submitted that the Plaintiff also failed to call the person he claims the 1st Defendant sent to apologize to him for the damage caused by his cattle as a witness in support of his case. It is necessary at this juncture to give a background of the instant suit. As noted in the introduction, the Plaintiff originally commenced the instant suit against the 1st Defendant and Page 9 of 29 one Ali as the 2nd Defendant. On their first appearance before the court, the 1st Defendant prayed the court to strike out the name of the said Ali as 2nd Defendant. The ground for the said prayer, as the record of proceedings indicate, was that the said Ali was his employee taking care of his cattle. The court therefore agreed with the 1st Defendant and struck out the name of the said Ali from the suit since the 1st Defendant accepted responsibility to defend the suit. This is an excerpt of what transpired in court on the said day: “The 1st Defendant raised his hand and informed Court that 2nd Defendant is his employee and therefore not a proper party in the case. He said the cattle are his and the land is for his younger brother and he employed 2nd Defendant and put him on the land and so 2nd Defendant should be disjoined. BY COURT: Let the name of the 2nd Defendant be struck off the case since 1st Defendant is taking full responsibility for the defence of the case. Since the 1st Defendant is claiming the land for his brother, let the brother rather be joined in the suit as a co-defendant.” It is thus noted that the Plaintiff took the action against the 1st Defendant and the said Ali who he averred is the Fulani man in charge of 1st Defendant’s cattle. Ali’s name was however struck out upon the prayers of the 1st Defendant. During his cross-examination by the Plaintiff however, the 1st Defendant denied having any Fulani man and also denied knowing any Ali. This is what transpired during the cross-examination of the 1st Defendant by the Plaintiff’s attorney: Q. Do you know Aliu Umaru? A. No. I don’t know him. Page 10 of 29 Q. Do you have a Fulani herdsman? A. I do not have a Fulani herdsman of my own. I have added my cattle to somebody who has cattle. Q. Can you mention the name of the person you are pairing a Fulani man with? A. He is called Donkor Uyim. Q. Do you know the name of the Fulani man? A. No. I do not know the Fulani man’s name. I only know Donkor. Q. Did you not see the Fulani man here at the beginning of this case? A. I did not see a Fulani man. The 1st Defendant denied not only a Fulani man, but also that he was sued as a party at the commencement of the suit. On the next adjourned date however, he now admits one Ali Umaru was sued as a party but his name was struck out by court. This is what transpired during the further cross-examination of the 1st Defendant by the Plaintiff’s attorney: Q. Are you aware that your Fulani man reported these destructions of my crops to me? A. It is not true. My Fulani man will not do that by reporting himself to you. Page 11 of 29 Q. Are you aware I sued you together with that Fulani man? A. It is not true. That is why I told you that I never had a Fulani man. BY COURT: Address the question. A. Yes I remember. Q. Why was Ali no longer a party to this case? A. After court sitting you drove the Fulani man out of the village and the Fulani man informed me you have cautioned him not to send the cattle to the bush and even threatened to kill him if he does. Q. Ali’s name was struck out from this suit in court. A. Yes. I must say that the testimony of the 1st Defendant is so discrediting as a result of the glaring lies put forth by him in his bid to deny responsibility. Apart from the obvious contradiction in his testimony under cross-examination where he denied ever knowing the said Ali or having him as his herdsman, it could be noted that prior to engaging counsel, the 1st Defendant conducted the proceedings by himself. He earlier filed a witness statement and hearing commenced where he cross-examined the Plaintiff all by himself prior to engaging Counsel. Even though upon engaging counsel, his witness statement was amended upon the orders of the court, I deem it necessary to comment on the initial witness statement filed by the 1st Page 12 of 29 Defendant on 26/11/21 so as to reveal his intent to defraud the court of the truth of the matter. Specifically by paragraphs 2 to 5 of his said witness statement, the 1st Defendant stated that: 2. That I counted the yam mounds that were destroyed by my cattle arrived [sic] at 28 yam mounds. 3. That the said destruction of Plaintiff’s farm cannot be denied and that it is an estimated number of 50 yam mounds that have been destroyed by my animals. 4. That the police at Wulensi were to assess the extent of damage. 5. That fifty tubers of yam cannot be sold at GH¢6,200 as claimed by the Plaintiff. I remind myself that the said witness statement filed on 26/11/21 was not what was relied upon by the 1st Defendant as his evidence in chief for the instant trial. The same was amended upon prayers by his counsel. I am however of the view that the said witness statement is part of the records and is subject to comment by this court as the trial court especially so as to assess the credibility of the witness in question. In his amended witness statement, 1st Defendant ho earlier admitted that the animals that caused the damage to the Plaintiff’s farm were his, and that the yam mounds damages were only fifty (50) in number, now denies and says he asked the Plaintiff to identify the cattle which he could not. Leaving out the contradictions in witness statements of the 1st Defendant referred to, there is ample evidence on the record which is an admission by the 1st Defendant that the cattle that caused the damage to the Plaintiff’s farm were his. In his cross-examination of the Plaintiff’s lawful attorney, this is what transpired: Page 13 of 29 Q. You did not see the cattle and yet you are giving me a debt to pay. A. Your Fulani man came and informed me that your cattle destroyed my yam farm. Q. The Fulani did not report to you but rather to me and I came to you. A. It was the Fulani man who told me about the destruction. From his questions, 1st Defendant admits his herdsman told him of the damage his cattle caused to the Plaintiff’s crops. He further admits he consequently went to meet with the Plaintiff because of that. He further admitted this during his cross-examination of PW2 and added that the cattle merely walked past the boundary of Plaintiff’s farm, only in so doing some of the yam mounds were destroyed. Excerpts of the cross-examination are reproduced as follows: Q. When the cattle entered Plaintiff’s farm, did I not send elders to meet with him? A. You did. Q. Was the cattle entry into the farm during the day or night? A. I am not the Fulani man so I cannot best tell whether it was in the morning or night. Q. Did the cattle merely walk through the farm or they entered and grazed to destroy the yam? Page 14 of 29 A. They did not merely walk though. They grazed on the yam crop. …… Q. I put it to you that the cattle merely walked by the boundary of the farm but in the process some of the mounds were destroyed. It is not a situation of the cattle feasting on your crop. A. They walked through the farm and destroyed many mounds. From his own statements, the 1st Defendant admits he was informed of the destruction by his own herdsman in charge his cattle. Counsel vehemently submitted that the Plaintiff’s claim should fail because he failed to call the Fulani man in support of his case or even the person he claims was sent to him by the 1st Defendant to plead with him on his behalf. The law is however that where a party admits the case of his opponent, there is no duty again to prove those facts with further evidence. Please see the case of IN RE ASERE STOOL; NIKOI OLAI AMONTIA IV (SUBSTITUTED BY TAFO AMON II) VRS. AKOTIA OWORSIKA III (SUBSTITUTED BY LARYEA AYIKU III) (2005-2006) SCGLR 637 where the Supreme Court held that: “Where an adversary has admitted a fact advantageous to the cause of a party, the party does not need any better evidence to establish that fact than by relying on such admission, which is an example of estoppel by conduct” The court affirmed its position in the recent case of KOJO BAAH (SUBSTITUTED BY JENNIFER BAAH) v GHANA WATER COMPANY AND 1 OR. Civil Appeal No: J4/52/2022 dated 29th June, 2022 where the court held per Amadu Tanko JSC that: Page 15 of 29 “The settled law is that where the evidence of a party or his witness corroborates that of his opponent, the court ought to make a finding in favour of the party who benefits from the contradictory evidence. Once there is an admission that the cables strung over a portion of the Respondent’s property, whether habitable or not, a cause of action arose. By this admission alone, the position of the law is that, the adversary need not adduce any further evidence to prove the same fat that has been admitted by his opponent.” In my view, the failure of the Plaintiff to call the 1st Defendant’s herdsman in support of his case is not fatal to his case. The admission by the 1st Defendant that he was informed of the destruction of the Plaintiff’s farm by his herdsman is sufficient proof that it was his cattle that caused the damage to the Plaintiff’s crops. Not only was he aware of that fact, he further admits he sent elders to meet with the Plaintiff after the cattle entered his farm. He even insisted it was only fifty yam mounds that were destroyed by the cattle and claimed the cattle merely moved by the boundary of the Plaintiff’s farm but damaged some of the yam mounds in the process. Consequently, I find that it was the cattle of the 1st Defendant that caused the damage to the Plaintiff’s crops. ISSUE 2 WHETHER OR NOT THE PLAINTIFF IS ENTITLED TO DAMAGES OF GH¢6,200 FROM THE 1ST DEFENDANT FOR THE DESTRUCTION OF HIS CROPS. The claims the amount of GH¢6,200 from the 1st Defendant for the destruction of his crops by his cattle. In support of his case the Plaintiff attached a photograph of his farm to indicate the extent of the damage caused by the 1st Defendant’s cattle. The Plaintiff also tendered in evidence a pendrive containing a video recording of his farm to evidence the extent of damage caused to his crops. Though by his reliefs the Plaintiff does not specifically mention that the damages claimed by him are in the nature of special damages, the claim of the Page 16 of 29 amount of GH¢6,200 from the 1st Defendant is, in actual sense a claim in the nature of special damages. The law is that general damages are those presumed by the court as the natural consequence of the breach or tort. On the other hand, special damages are specific losses which a party seeks to recover as a consequence of the breach of contract or tort. It is not one which is presumed by the court and as such, the party claiming same has the burden to proof the loss suffered by him. Commenting on the distinction between general damages and special damages, the Supreme Court in the case of ANKOMAH v CITY INVESTMENT [2013] 53 GMJ SC at 99 had this to say, per Dotse JSC: “It does not really matter whether the damages are described as general or special. The distinction between the two really lies in the fact that whilst special damages must be strictly proved in order for a claimant to succeed, that of general damages need not be strictly proved.” The court in the above cited case cited with approval the decision of Acquah J (as he then was) in the case of NORGBEY & ANR v ASANTE & ANR [1992] 1 GLR 506, AT 516, where he stated the requirements for a successful proof by a party claiming special damages. He held as follows: “The plaintiff claims special and general damages against the defendant. And it is trite learning that special damages must be proved and proved strictly. But let me digress a little to explain what is required in a proof of special damages and the consequences following from the failure by a claimant to satisfy the said requirements. A successful proof of a special damage involves basically proof of the subject matter of the special damage, and then proof of the value claimed for that subject matter. Now these two-fold requirements may boil down to two, three or four steps depending on the nature of the claim. For example, where someone claims as special damage the sum of ¢10,000 as being the value of his damaged watch, this will involve the claimant in proving first, Page 17 of 29 that the defendant did indeed destroy his watch; and secondly, that the value of the damage watch is ¢10,000. Again where the claim for special damage is ¢10,000 being cost of repairs for a damaged watch, the claimant has to prove first that the defendant did damage his watch; secondly, that the claimant did repair the said damaged watch; and thirdly, that the repairs cost him ¢10,000. The learned judge continued and further held that: “The legal position therefore is that in a claim for special damages where the claimant succeeds in proving both the subject matter and the value, he is entitled to be awarded the value he claims. But where he succeeds in proving only the subject matter but fails to prove the value of the subject matter, the claimant is not to be denied any compensation. In such a situation the claimant is entitled to be awarded some value for the damaged subject matter. From the above-cited case laws, the position of the law is that the Plaintiff, as in the instant case, who is claiming special damages is required to prove, first of all, that there was damage to his crops; that it was the Defendant’s cattle that caused the damage; and that he would have made an income of GH¢6,200 from harvesting his crops but for the destruction. It is only when the Plaintiff is able to prove these three essential elements that he could be entitled to the amount he is claiming. I have determined under issue one that it was the 1st Defendant’s cattle that caused the destruction to the Plaintiff’s crops. By this finding, the first hurdle has been overcome by the Plaintiff. The next hurdle is to prove that damage was caused to his crops. It is the case of the Plaintiff that the 1st Defendant’s cattle first destroyed his maize farm and the next night, they destroyed his yam farm. He testified and stated that the total farm destroyed by the 1st Page 18 of 29 Defendant’s cattle is one and half acres of the land, out of three acres. The burden lay on the Plaintiff to prove the extent of the damage to his crops. The claim by the Defendant having been denied by the 1st Defendant, the burden lies on the Plaintiff to establish that indeed the 1st Defendant’s cattle destroyed his yam farm as well as his maize farm. It is to be noted that the 1st Defendant admits that some form of damage was caused to the Plaintiff’s farm by his cattle. He however insists that it was only twenty yam mounds that were destroyed by his cattle. During the cross-examination of the Plaintiff’s attorney by the 1st Defendant, this is what transpired: Q. The cattle spoilt twenty-eight mounds. A. They are more than that. Q. I have no knowledge of maize farm being yours which has also been destroyed by my cattle. A. I have maize on my farm which was destroyed by your cattle. During the cross-examination of PW2 by the 1st Defendant, the 1st Defendant insisted that the cattle merely moved past the boundary of the Plaintiff’s farm and that it was not that the cattle feasted on his farm. He however admits that the cattle in so moving destroyed some of the Plaintiff’s yam mounds. Excerpts of the cross-examination is reproduced as follows: Q. Did the cattle merely walk through the farm or they entered and grazed to destroy the yam? Page 19 of 29 A. They did not merely walk though. They grazed on the yam crop. Q. Did you call the agric people who always come to our farms to see the destruction? A. No. The agric extension workers were not around by then and you also said it was a family matter so we should solve it between us. We involved the assemblyman and some elders who presided over the settlement. Q. How many yam mounds did the cattle destroy? A. I cannot give a figure but the mounds destroyed were many. Q. I put it to you that the cattle merely walked by the boundary of the farm but in the process some of the mounds were destroyed. It is not a situation of the cattle feasting on your crop. A. They walked through the farm and destroyed many mounds. Q. Your categorical statement that the cattle destroyed one and half acres of the yam farm is not true. A. That is what I saw. Thus the 1st Defendant admits some form of damage was caused to the yam crops belonging to the Plaintiff by his cattle. He however denies there were maize crops on the land, and also the total size of the farm destroyed was one and half acres of land. The Plaintiff is therefore Page 20 of 29 duty bound to prove that there were maize crops on the land and same were eaten or destroyed by the 1st Defendant’s cattle. He is also to lead evidence to establish that the total size of the farm destroyed was one and half acres of land. In my opinion, the Plaintiff has not been able to establish that there were maize crops on the land and that same were destroyed by the 1st Defendant’s cattle. The photograph of his farm as well as the video recording do not reveal any trace of maize crops on the land. I have studied the photograph tendered by the Plaintiff as well as the video recording, all that could be seen are yam mounds with creeping yam plants. It also reveals several cattle footprints indicating the presence of a herd of cattle on the yam farm. It could also be seen that some sections of the yam mounds were flattened by the cattle footprints. The creeping yam plants also look disorganized and out of place indicative. A careful examination of the photograph however does not reveal any trace of maize crop. Was it that the cattle chewed the maize even to the stock to the extent that no trace of same remained on the land? In my opinion, though there is evidence that some extent of damage was caused to the Plaintiff’s yam farm, the Plaintiff has not led any evidence to establish that there were maize crops on the land and that same were also destroyed by the 1st Defendant’s cattle. From the above analysis, there is evidence that some damage was caused to the Plaintiff’s yam farm by the 1st Defendant’s cattle. The next element to proof in order to be entitled to the amount claimed by him is that the value of the damage amount to GH¢6,200. Since this is a case of destruction of farm crops, the Plaintiff ought to lead evidence to establish that he would have made an income of GH¢6,200 from the sale of his harvested yam tubers but for the destruction caused by the 1st Defendant’s cattle. This in my opinion is the most essential ingredient and much is required of the Plaintiff. Explaining how he arrived at the amount of GH¢6,200 Plaintiff stated that he assessed the maize destroyed at GH¢1,200 which he Page 21 of 29 demanded the 1st Defendant to pay. A week later the cattle destroyed his yam farm and he charged the 1st Defendant to pay GH¢5,000. On his part, the 1st Defendant maintained that yam mounds destroyed were only twenty eight in number. He also posited that a tuber of yam at the time was sold at GH¢12 while a calabash of yam tubers consisting of yam tubers was sold at GH¢1,200 at the time. Counsel for the Defendants submitted that the Plaintiff failed to call on experts from the Department of Agriculture to value the extent of the damage caused to his crops and the monetary value to be placed on same. In my view, the Plaintiff has failed to lead evidence to prove that he would have made an income of GH¢6,200 from the sale of his yam tubers after harvest but for the destruction caused by the 1st Defendant’s cattle. Since his claim was denied, the Plaintiff was expected to lead evidence to establish the number of yam mounds that were destroyed by the cattle. Merely stating that the size of the yam farm destroyed was one and half acres of land was not sufficient. He could have led further evidence on the income he could generate on a one acre yam farm so as to assist the court to compute the value of the one and half yam farm. The 1st Defendant did not dispute that a tuber of yam at the time was sold for GH¢12. He also did not dispute that a calabash of yam was sold at GH¢1,200 at the time. The Plaintiff, in order to assist the court, could have led further evidence to prove the number of yam tubers that could usually be generated from a one acre yam farm. He could have called a well-known yam farmer to testify in support of his case. Apart from testifying that they witnessed the destruction of his farm, the evidence of PW1, PW2 and PW3 said nothing more. The law is however that where a party who claims for special damages is able to prove the subject matter but fails to prove the value of the damage caused, he is not to be left empty- handed. In such circumstances, it has been held that the party be awarded nominal damages Page 22 of 29 for the damage caused. This was the decision of the court in the NORGBEY & ANR V ASANTE & ANR case (supra) where the court relied on the earlier case of YIRENKYI V TARZAN INTERNATIONAL TRANSPORT [1962] 1 GLR 75 AT 78, per Ollennu J (as he then was) that: “The plaintiff completely failed to prove the special damages as claimed. But that failure does not disentitle him to some damages. There is no doubt that he suffered some loss. The fact that the evidence he led has not made it possible for the court to assess damages is not completely fatal. It has been held that in such cases he should be awarded nominal damage [sic]…” Thus, in the instant case the Plaintiff has been able to prove that the 1st Defendant’s cattle caused same damages to his yam farm. He could not however lead evidence sufficient enough to assist the court assess the income he would have made from the destruction of his said one and half acre yam farm. His claim for special damage of GH¢6,200 ought therefore to fail. Since there is evidence that some extent of damage has been caused to the Plaintiff’s yam farm by the 1st Defendant’s cattle, the Plaintiff is entitled to some nominal damages for the loss suffered by him. The award of nominal damages is at the discretion of the court, taking into consideration the whole circumstance of the case. It has been held that it does not mean a small amount, but must be reasonable and based on equity. See the case of HULLBLYTH (GH.) LTD v ANGLOGOLD ASHANTI [2013] 59 GMJ 89 C.A which held that: “Nominal damages do not mean small but the amount to be awarded under this head should be reasonable. The award of nominal damages for all intent and purposes emerged from considerations of equity which found it unjust to deny a party who proved some loss any compensation only because, for whatever reason, the party failed to proof the value or quantum of loss…what should be reasonable is always a question Page 23 of 29 of fact and even though there could be occasions where the judge will find himself in a situation of difficulty determining what is reasonable because of the subject matter, the duty is cast on the judge as a solid engineer to tap on all indications available including his experiences in coming out with an award that in all fairness would be accepted as reasonable”. In the instant case the Plaintiff has led evidence to establish damage caused to sections of his yam farm by the 1st Defendant’s cattle. The photographs attached indicate that the cattle moved onto the farm thereby destroying the yam mounds which had growing yam plants in them. Some sections of it shows that the yam mounds have been completely damages and the Plaintiff would have to raise new yam mounds and replant yam sets in them. No doubt the Plaintiff incurred some expenses in acquiring labour to prepare the land, raise yam mounds, to acquire yam sets and to plant them. If the destruction of his farm would require that he re- raises yam mounds and re-plant the yam sets, it is reasonably foreseeable that he be given some compensation for his expenses. For these reasons, I award nominal damages of GH¢4,000 against the 1st Defendant in favour of the Plaintiff. ISSUE 3 WHETHER OR NOT THE PLAINTIFF IS THE OWNER OF THE DISPUTED FARMLAND The suit would have terminated with the determination of issues one and two, but for the relief sought by the Plaintiff that the 1st Defendant be ordered to vacate from the land. The 1st Defendant opposed this and claimed he was granted the land by the 2nd Defendant which resulted in the joinder of the 2nd Defendant to the instant suit. The issue then is joined between the parties as to the ownership of the disputed farmland. The Plaintiff claims his father, Nuri Bondan first settled and farmed on the disputed land. This was denied by the Defendants who averred that their father met Boi who led them to the chief of Gbungbaliga at the time by Page 24 of 29 name Naa Wumbei. The said chief granted them the land including the disputed land for farming purposes and they have been in possession of same for the past thirty years. According to the testimony of the 2nd Defendant, at the time the land was granted to them, the father of the Plaintiff was in Togo. When he later to migrated to Lupusi and later to settle with them, they granted him a portion of the land granted to them by the Gbungbaliga chief so he also could farm to feed his family. On his part the Plaintiff’s case is that the land acquired by his father was eleven acres. According to him, the father of the Plaintiff farmed on the land since the year 1931 till his demise in the year 1988 whereupon the farmland devolved unto the Plaintiff. The Plaintiff also took possession of the land and has been cultivating it since then without any hindrance from any person. He also testified that at the time Plaintiff’s father acquired the land, the Defendants were not at Gbungbaliga B. They later migrated from Mojado to Gbungbaliga B and came to farm already used lands as there were no virgin lands at the time they came. In order to assist the court to identify the land in dispute, the Court ordered for a composite plan to be prepared in respect of the disputed land. The said composite plan shows the land claimed by the Plaintiff edged red while that of the Defendants edged green. The 1st Defendant’s kraal and farmhouse is situated at an intersection of the land claimed by both parties. During their respective cross-examinations of the Plaintiff’s attorney, the 1st and 2nd Defendants alluded to various acts of possession exercised by them over the disputed land. The 1st Defendant claimed he and Naa Wumbei had a cattle ranch on the disputed land several years ago. On his part the 2nd Defendant claims there was an occasion when someone needed land for and Plaintiff Attorney’s father referred the young man to him. He also claims he gave land to Nleba to cultivate maize and also settled Fulai herdsmen on the land. He further stated that he granted land to Ngaribe to farm and put up his building, which Page 25 of 29 building is currently in ruins. He again alluded to the fact that he has ever stopped the Plaintiff’s family from farming on the land in dispute. In all of these claims, the Plaintiff’s attorney admitted some of the assertions in part and stated that even though some of them actually happened, it was in respect of a different land and not the land in dispute. He admitted that his father ever sent the young man to the 2nd Defendant for grant of land, but that it was a different land and not the one in dispute. He also admitted that Ngaribe’s house is not in ruins but he stated that it is not situate on the disputed land. He however denied that the 2nd Defendant ever stopped his family from farming the disputed land. According to the Plaintiff, his father acquired the disputed land and cultivated same until his death in the year 1988. After the death of his father in the year 1988, he continued farming on the disputed land till date. Indeed, there is undisputed evidence on record that the Plaintiff has his food crops on the land in dispute. The witnesses for the Defendants, DW1 and DW2 rather testified that the whole of Boado lands belongs to the Defendants. They however seem to have no knowledge of the particular land in dispute. They do not know where the 2nd Defendant settled his herdsmen or Plaintiff’s farm. This is what transpired during the cross- examination of the DW2, Napari Salifu by the Plaintiff’s lawful attorney: Q. Do you know where my farm is in Buado? A. I do not know you, let alone your farm. Q. Do you know where the Defendants settled their Fulani man in Buado? A. No I do not know that. Page 26 of 29 The testimonies of DW1 and DW2 are of a general import as they claim the whole of Bohado lands were granted to the Defendants and so they are the owners of it. It does not however answer the question whether the disputed farmland belongs to the Plaintiff or the 2nd Defendant. This is necessary because it is not all of the Bohado lands that is being claimed by the Plaintiff. Neither does Defendants also trace their root of title to Boa. According to the case of the Defendants, when they migrated from Saboba to Gbungbaliga B, they met Boa who led them to Naa Wumbei for grant of land. There is however evidence on the record that before 2nd Defendant granted the land to the 1st Defendant to set up his ranch, he called the family to inform them about it. This is evident from the cross-examination of PW1 by the 1st Defendant, excerpts of which are reproduced below: Q. Your uncle called your side for your side to allow me settle my cattle there and your side agreed. A. You called my family three times but I was not around. I met the Fulani man when I returned. It is also clear that such a meeting took place and 2nd Defendant informed the family of his intention to grant a section of the land to the 1st Defendant to set up his kraal and the family did not protest same. PW2 answered during his cross-examination by the 1st Defendant as follows: Q. When 2nd Defendant gathered you people and you told you that he wanted to establish a kraal on the disputed land, did you raise any protest? A. I did not see any protest. Page 27 of 29 From the evidence led, one fact is not disputed, which is that the Plaintiff and 2nd Defendant are of one family. The 2nd Defendant is also the uncle of the 1st Defendant which makes all the parties of one family. The evidence also indicates acts of possession of exercised over the land by both parties, which is that the Plaintiff continues faming where his father farmed, while the 2nd Defendant also granted sections of the land to other persons. The fact that 2nd Defendant had to consult the rest of the family before granting the 1st Defendant permission to set up his ranch on a section of the land suggests to me that the land has assumed the characteristics of a family property, only that each of the members of the family had where he or she farmed. I must however remind myself that the issue of ownership of the land came up for determination because of the order sought by the Plaintiff for 1st Defendant to remove his cattle from the land. That could not be determined without first resolving whether the Plaintiff is the owner of the land. It appears from the evidence however that the issue has become moot since the 1st Defendant claims he has met the Plaintiff’s demand to remove is cattle from the land. In his cross-examination of PW1, the 1st Defendant argued: Q. Presently, is the Fulani man still on the disputed land? A. I have not seen any Fulani man on that one and I have not seen any cattle there. Q. So the demand to relocate my cattle has been met by my instruction. A. Yes but payment for the destruction is pending. In my opinion, there is no need pursuing the issue further since 1st Defendant claims, which is admitted by the PW1 that he has removed his cattle from the land as requested by the Page 28 of 29 Plaintiff. It will therefore be an exercise in futility to order the 1st Defendant to remove his cattle from the land in dispute. I will therefore restrain myself to the reliefs claimed by the Plaintiff and decline to comment on the ownership of the disputed land CONCLUSION The instant suit is primarily for compensation for the destruction caused to the Plaintiff’s farm crops by the 1st Defendant’s cattle. Three important elements ought to be established in order for the Plaintiff to succeed on his claims which are: that damage was caused to the Plaintiff’s farm; that it was the 1st Defendant’s cattle that caused the damage; and that value of the damage caused amounts to GH¢6,200 as claimed by the Plaintiff. I have found that the Plaintiff has proved the first and second elements. He however could not prove with cogent evidence that he would have made income of GH¢6,200 from the sale of his yam tubers but for the destruction. I also found that Plaintiff could not prove that there were maize crops on the land which were destroyed by the 1st Defendant’s cattle. Having proved damage to his crops and the cause of the damage, which is the 1st Defendant’s cattle, the law permits the Plaintiff to be awarded nominal damages for the damage instead of the special damages claimed by him. Having regards to the circumstances of the instant case and extent of damage, the Plaintiff is awarded nominal damages of GH¢5,000 against the 1st Defendant. Cost of GH¢2,000 is awarded against the Defendants in favour of the Plaintiff. H/W GODSON ETSE KUMADO Page 29 of 29