Yeboah v Suleman and Others (A9/10/24) [2024] GHADC 701 (22 November 2024)

IN THE DISTRICT COURT AT ASOFAN SITTING BEFORE H/W NANCY TEIKO SEARYOH (MRS.) ON FRIDAY THE 22ND DAY OF NOVEMBER, 2024 SUIT NO. A9/10/24 MADAM SALOMEY YEBOAH __ PLAINTIFF VRS: 1. HUSSEIN SULEMAN (A.K.A FUSENI) 2. MUNTA ABUBAKAR 3. NASIRU DEFENDANTS 4. ALHASSAN 5. ISSAH JUDGEMENT On the 29th September, 2023, by a writ of summons filed, the Plaintiff brought the Defendants before this honourable Court for the under mentioned reliefs. a) An immediate order for recovery of possession of the said portion of the land. b) Cost Page 1 of 8 Plaintiff in her claim averred that she is a pensioner and an octogenarian and the bonafide owner of House with digital address number F111096 Oxygen Street GW-0988-96 at Oduman, Accra in the Ga West Municipality and that sometime ago she had tenants on her frontage who engaged in vulcanizing activities but somewhere in August, 2021 these tenants vacated the premises and relocated. She further averred that right after that, the Defendants herein, entered the frontage without her consent and erected another canopy and thereafter commenced some activities. She prayed the Court to compel the Defendants to vacate the frontage of her premises. In their statement of Defence, the Defendants denied each and every allegation of fact in the Plaintiff’s statement of claim. They stated that they are licensees of the District Assembly and had been operating their business since the year 2005 even before the Plaintiff started building on her land. They again stated that the Court before Her Worship Annette Sophia Essel (Mrs.) on the 24th October acquitted and discharged the Defendants. They further stated that the Plaintiff is a trespasser who is disturbing their peace. They stated that the Plaintiff has no cause of action against them. They counterclaimed as follows; (a) Damages in the sum Four Hundred Thousand Ghana Cedis (GH₵400,000.00) in favor of the first and second Defendants for malicious prosecution. (b) Cost of Eighty Thousand Ghana Cedis (GH₵80,000.00) as legal fees (c) Any other cost that the honorable Court may deem fit. In their reply to the statement of Defence and Defence to the counterclaim, the Plaintiff stated that the fact that the Defendants are licensees of the District Assembly of Amasaman does not permit them to operate their vulcanizing business on her land. The land which she purchased from the Chief of Oduman somewhere in 1997. She stated that her grantors were the Chief and Elders of Oduman who issued her with an indenture and that she had been in possession of the land since 2003. She stated that she had legal capacity to initiate this legal action against the Defendants. She maintained that Page 2 of 8 she was entitled to her relief and therefore the Defendants had no reasonable defence. She prayed for Judgement to be entered in her favour. The Court referred parties to Court connected ADR to enable parties attempt settlement. Parties returned to Court as settlement broke down. At the close of proceedings the Court ordered Parties to file witness statements for trial to commence. They complied with the orders of the Court and went through full trial. Plaintiff in this suit testified herself and the second Defendant also testified on behalf of all Defendants. Parties also tendered Exhibits in support of their respective cases. At the close of hearing, the issues that arose for determination of the Court were; (i) Whether or not the Plaintiff is the owner of the portion of the land in dispute. (ii) Whether or not the first and second Defendants are entitled to damages for malicious prosecution. It is trite in civil cases that he who asserts usually has the burden of proving his case on the preponderance of probabilities. He proves it by providing sufficient evidence in accordance with sections 11 (4) and 12 of the Evidence Act, 1975 (NRCD 323). In effect the claimant is duty bound to prove any particular averment or allegation made, failing which an unfavorable ruling will be made against him. Thus, in the case of Ababio vrs Akwasi III [1995-1996] GLR 774 the Court held, “It is the party who raises in his pleadings an issue essential of success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this he wins if not he loses on that particular issue”. See also Ackah V Pergah Transport Limited [2010] SCGLR 728 at page 736. The Plaintiff in this matter maintained that the frontage of her house where the Defendants operated their business belonged to her and that the Defendants are operating their business there without her consent. With this assertion, the burden therefore fell on the Plaintiff to prove that, that said portion of the land belonged to her. Page 3 of 8 In the case of Majolagbe Vrs Larbi and Anor [1959] GLR 190 at 192 the Court held “where a party makes an averment capable of proof in some positive way, example, by producing documents, description of things, reference to other facts, instances or circumstances and his averment is denied, he does not it by merely going into the witness box and repeating the averment on Oath, or having it repeated on oath by his witness. He proves it by producing other evidence of facts and circumstances from which the Court can be satisfied that what he avers is true”. See also Klah Vrs Phoenix Insurance Company Limited [2012] 2 GLR 221 at 246 The Plaintiff in this case failed to prove her averments in a positive way or produce any other evidence to support her claim. Thus in this case where the Plaintiff laid claims to the particular portion of land in front of her house and it was denied by the defendants, she was supposed to produce documentary evidence (land title documents) or attach any other exhibit or even call other witnesses (grantors) to prove her claim but she failed to do so. Thus, she only entered the box and repeated her averments on oath. She failed to adduce corroborative evidence to support her claim. In view of the forgoing and on the totality of evidence adduced, the Court will therefore hold that the plaintiff’s claim has failed on its entirety and accordingly, cost of Four Thousand Ghana Cedis (GH₵4,000.00) is hereby awarded for the Defendants. On the second issue as to whether or not the first and second Defendants are entitled to damages for malicious prosecution. In their Defence and Counterclaim, the defendants counterclaimed for (i) Damages in the sum of Four Hundred Thousand Ghana Cedis (GH₵400,000.00) in favour of the first and second (1st and 2nd) Defendants for malicious prosecution. (ii) Cost of Eighty Thousand Ghana Cedis (GH₵80,000.00) as legal fees. (iii) Any other cost that this honourable Court may deem fit In the case of Kamara Vrs Traore [1968] GLR 1009, Annan J. (as he then was) stated as follows; Page 4 of 8 “A Counterclaim is a cross action and is therefore a separate action and it is filed to commence proceedings in the Court in which the Plaintiff’s claim is filed. Clearly a counterclaim cannot come into being independently of a claim by a Plaintiff and it cannot be said that a Counterclaim issued in the District Court is a claim for the commencement of an action in either the High Court or a Circuit Court” It is important to note that the Defendant carries the same burden as the Plaintiff to prove his Counterclaim. Brobbey JSC in the case of In Re Ashalley Botwe lands. Adjetey Agbosu & ors Vrs Kotey & ors [2003 – 2004] 1 GLR 420 - 423 stated thus, “………..If the Defendant desires the determination to be made in his favour, then he has the duty to help his own cause or case by adducing before the Court such facts or evidence that will induce the determination in his favour.” In order that the Defendants succeed in their claim in malicious prosecution, they would have to establish all the ingredients of malicious prosecution which are; (i) That the Plaintiff instituted criminal proceedings against them or was actively instrumental in putting the law into force against them in proceedings which terminated in their favor. (ii) That the Plaintiff acted without reasonable and probable cause and was guilty of malice. (iii) That the Defendants suffered damage as a result of the prosecution. See Yeboah vrs Boateng VII [1963] GLR 182, and Aubin Vrs Ehunaku [1960] GLR 167 C.A. Clearly, failure by the Plaintiff to prove any one of them (elements) will be fatal to the Plaintiff’s case. See Nkrumah Vrs Foli & Anor [1985] DLHC 2163. Page 5 of 8 In relation to the first element or ingredient, Chief Justice Azu Crabbe (as he then was) in the landmark case of Musa & Anor Vrs Limo-Wulana & Anor [1975] 2GLR 290 – 301 stated “if therefore a complainant goes beyond giving what he believed to be correct information to the Police and the Police without further interference on his part (except giving such honest assistance as they might require) thought fit to prosecute, it would be improper to mark him responsible in damages for the failure of the prosecution. But if the charge was false to the knowledge of the complainant, if he misled the police by bringing suborned witnesses to support it, if he influenced the Police to assist him in sending an innocent man for trial before the Magistrate it would be equally improper to allow him escape liability because the prosecution had not technically been conducted by him. The question in all cases must be who was the Prosecutor? And the answer must depend upon the whole circumstances of the case. The mere setting of the law in motion was not the criterion, the conduct of the complainant before and after making the charge, must also be the consideration”. During cross-examination of the Plaintiff by Counsel for Defendants, this is what ensued. Q: In this ruling of the District Court, Amasaman, you are the Complainant in the matter is that not so? A: Yes I was the complainant Q: You actually followed up for the Defendants in this matter to be prosecuted therein. A: I withdrew the matter from the Amasaman District Court and brought it here as a Civil Case. From the holding of Chief Justice Azu Crabbe (as he then was) in the Wulana case (Supra), apart from the fact that the Defendants tendered in a ruling from the Amasaman District Court which discharged and acquitted A1 (the first Defendant herein) because the prosecution failed to establish a prima facie case, and also being able to prove that the Page 6 of 8 Plaintiff in the instant suit was the complainant in that case, they failed to establish whether or not the police used their independent investigations to prosecute the Defendants in this case or whether it was the Plaintiff who incited or induced the police to prosecute the Defendants. They also failed to prove that the Plaintiff acted without reasonable and probable cause or that she acted out of malice. They failed to prove that the Plaintiff failed to act without just cause, falsely or fraudulently. Indeed the Defendants failed to lead cogent evidence to prove all the circumstances surrounding the case or the whole circumstances of the case. Again, the second Defendant who testified on behalf of the Defendants stated in his Witness Statement that they were arrested, detained and prosecuted for almost two years but failed to lead evidence to prove that they actually suffered damages as a result of the arrest, detention and prosecution. It is important to note that from the records of the District Court, Amasaman, only the first Defendant was acquitted and discharged whilst the second Defendant and others were at large. From the foregoing, and on the totality of evidence adduced, the Court hereby holds that the Defendants counterclaim for damages for malicious prosecution has failed since they failed to lead evidence to establish all the ingredients of malicious prosecution. Page 7 of 8 Disposition (1) Upon considering the total evidence adduced, the Court holds that the Plaintiff’s claim has failed in its entirety and accordingly, the Court hereby awards cost of Four Thousand Ghana Cedis (GH₵4,000.00) for the Defendants. (2) The first and second Defendants failed to prove all the ingredients malicious prosecution and thus they therefore failed to prove or establish their counterclaim and accordingly their counterclaim has also failed. (SGD) H/W NANCY TEIKO SEARYOH (MRS.) MAGISTRATE Page 8 of 8