Agyeman Dacosta v Abrafi (A5/14/24) [2024] GHADC 792 (18 October 2024)

SITTINGINTHEDISTRICTCOURTATWENCHIINTHEBONOREGIONONFRIDAY THE18THDAYOFOCTOBER,2024BEFOREHISWORSHIPISSAHABDUL-WAHAB ESQ.(MAGISTRATE) SUITNO.A5/14/24 KWAMEAGYEMANDACOSTA ………….. PLAINTIFF OFNSAWKAW VRS ABRAFIMILLICENTOFNSAWKAW …… DEFENDANT JUDGMENT Theplaintiffbroughtthisactionagainstthedefendanthereinseekingthefollowingreliefs; a. An order directed at the defendant to pay compensatory damages of twenty thousand Ghana Cedis (GH₵ 20,000.00) for the public harassment and ridicule the defendant and herfamilysubjectedplaintifftobypinningapregnancyontheplaintiff; b. An order of the court to compel the defendant to abide by the terms of settlement reachedbythemattheCHRAJinNsawkaw; 1 c. An order to compel the defendant to pay GH₵1,000.00 to the plaintiff as additional cost incurred during the conduct of a paternity test in Sunyani as agreed per the terms reachedatCHRAJinNsawkaw; d. An order directed at the defendant to make announcements on the radio stations at Nsawkawtoretracttheslanderouspublicationsmadeagainsthim(plaintiff); e. Costincidentaltothesuit;and f. Anyotherorder(s)thatthecourtmaymake. Thedefendantpleadednotliabletotheclaimsaftersamewerereadandexplainedtoherintwi. The court after a care consideration of the particulars of claim of the plaintiff set the following issuesdownfortrial; 1. Whether or not the parties were in any amorous relationship which resulted in any pregnancy; 2. Whetherornotthedefendanthumiliatedtheplaintiffinanyway; 3. WhetherornottheplaintiffisentitletotheGH₵20,000.00compensation; 4. Whether or not there was any terms of settlement reached by the parties herein at the CHRAJ Office in Nsawkaw and for which the plaintiff is entitle to any refund of the GH₵1,000.00; 5. Whether or not an order will lie against the defendant for the retraction of any words whichplaintiffclaimscausedhimsomeembarrassment. In his evidence in chief, the plaintiff told the court he is Kwame Agyeman. That he lives in Nsawkaw.Plaintiffsaidheisatraderandthatheknowsthedefendantherein.Thathe(plaintiff) metthedefendantandproposedlovetothedefendantandsheagreed.Thatthedefendantcame 2 to him (plaintiff) and they had sex. Plaintiff said he never saw the defendant again until after some time when the defendant came to tell him (plaintiff) she was pregnant. Plaintiff said he told the defendant to go for a CT scan. That when the defendant went for the scan it showed thatthepregnancywasfour(4)monthsandfive(5)days.Plaintiffsaidhetoldthedefendanthe (plaintiff) was not responsible. That the defendant’s family came to him (plaintiff) but he insisted he was not responsible. That the defendant later delivered the baby but that he (plaintiff) did not go even though he (plaintiff) was informed. Plaintiff said the defendant then took him (plaintiff) to the CHRAL in Nsawkaw. Plaintiff said there he denied responsibility. That they then ordered for DNA test which was to cost GH₵6,000.00. Plaintiff said he paid GH₵4,000.00andthedefendantpaidGH₵2,000.00. Plaintiffsaidthey(parties)were toldwhentheresults shows he(plaintiff) is notresponsiblefor thepregnancythedefendantwill refundallthemoneyhe(plaintiff)paid.ThattheDNAresults cameandhe(plaintiff)wastoldthepregnancyisnotforhim(plaintiff).Thatthedefendantthen said she will not refund the money. That the CHRAJ Officer advised him (plaintiff) to come to court. When cross-examined defendant told plaintiff he had sex with her (defendant) several times andnotonceashe(plaintiff)claimed,plaintiffsaidthedefendantcametohim(plaintiff)andhe never saw her (defendant) again. When told he (plaintiff) suggested at CHRAJ that they go for DNA and not her (defendant). Plaintiff said it was the CHRAJ Officer who suggested that they go for DNA test. When told by the defendant that he (plaintiff) suggested the DNA test, plaintiffsaidtheCHRAJOfficersuggestedit.Plaintiffdidnotcallanywitness. 3 Inherevidence-in-chief,thedefendanttoldthecourtsheisAbrafiMillicentandthatshelivesin Nsawkaw and is a trader. That she knows the plaintiff herein. The defendant said she got pregnant and mentioned the plaintiff to her (defendant) as the one responsible for the pregnancy. Defendant said she informed the plaintiff and the plaintiff asked her (defendant) to come. That the plaintiff accepted the pregnancy and said he (plaintiff) will take care of her (defendant). Defendant saidtheplaintiff thengaveher money togo for aCT scan. Thattheday she informed the plaintiff the plaintiff invited her (defendant) to his house and she (defendant) spent the night at plaintiff’s house. That when she was leaving the next day plaintiff gave her (defendant) only GH₵5.00. Defendant said the plaintiff later called to tell her (defendant) that the pregnancy is not for him (plaintiff). Defendant said when she also came to Nsawkaw, she did not have anything to do with any man apart from the plaintiff. That she then carried the pregnancy and later delivered the baby and the plaintiff was informed but plaintiff did not come to see the baby. Defendant said they took the matter to CHRAJ in Nsawkaw. There the plaintiff requested for a DNA test. They then said they (parties) should contribute money for theDNA.Defendant saidsheandherfamilywentforaloan.Thatwhentheresults oftheDNA came, they said the plaintiff is not the father of the child. There the plaintiff said they should refund his (plaintiff) money back to him. Defendant said they are not those who requested for theDNAtest. The sole witness for the defendant was one Selina Boahemaa who said she is a hairdresser and livesatNsawkaw.Thatsheknowstheparties.Thatthedefendantisher(dw1)sister’sdaughter. Dw1 said she was there when her sister called to inform her (dw1) that the defendant was pregnant for the plaintiff. They were the planning s a family to inform the plaintiff when plaintiff called the defendant to come for money for a scan. Dw1 s aid plaintiff later took her 4 (dw1) phone number from the defendant and called to her (dw1) that hehad seen the scan and that he (plaintiff) cannot deny responsibility of the pregnancy and said the defendant is not a bad girl. Dw1 said the plaintiff later said he is not responsible after the scan. That the plaintiff also said he will only accept the pregnancy after a DNA test. The defendant later delivered the childandtheplaintiffwasinformedbuthedidnotcome. The witness (dw1) said they took the matter to the CHRAJ at Nsawkaw. There they put pressureon themtobring anamountof GH₵2,000.00for aDNA test.Thatthetest results came and the plaintiff is not the father of the child. That form there plaintiff said he will take his moneyback.Dw1saiditwastheplaintiffwhorequestedfortheDNAtest. The court summoned the officer in charge of the CHRAJ in Nsawkaw to testify. He told the court he is Abu Saaka Pontonprom and a senior investigator with CHRAJ and also the District directorofCHRAJatNsawkaw.Thewitness(CW)toldthecourtthedefendantappearedbefore the CHRAJ alleging she got pregnant for the plaintiff as a result of concubinage relationship and that plaintiff refused to accept same but offered to take care of her until she delivers, so they do a DNA test. That in spite of that the plaintiff refused to maintain the child. So the defendant brought the matter to the Commission (CHRAJ) for redress. The witness said the commission went into the matter and a DNA was ordered on the basis of an agreement which agreementtheplaintifftenderedincourt. Upon a cursory evaluation of all the evidence it is very important to observe that the parties herein have both stated that they were in a love relationship for a period and during which periodtheyhadsexualintercoursethoughnotmarriedtoeachother.Thiswasaftertheplaintiff herein met the defendant at Nsawkaw and proposed love to her (defendant) and to which the 5 defendantaccepted.Thisisafactassertedbyboththeplaintiffhimselfandthedefendantherein in their respective testimonies before this court. It has therefore been established from the evidence before this court that there was a love relationship between the parties for a period andduringwhichtimetheyengagedinsexualintercourse. Secondly, it must be observed that, the plaintiff stated that the defendant later told him (plaintiff)shewaspregnant andhegavedefendant moneytogoforascanwhichthedefendant did. The defendant also alluded to this fact when she told the court the plaintiff gave her (defendant)moneytogoforascanwhichshedidandbroughttheresulttotheplaintiff. Hereitmustbestatedthatplaintiffneversaidhedeniedanyresponsibilitywhenthedefendant first informed him about the pregnancy. What the plaintiff said was that he called defendant and gave her money to go for a scan and when defendant did he (plaintiff) saw that the pregnancywasfour(4)monthsandfive(5)daysoldandforwhichhe(plaintiff)couldnothave beenresponsible. Thiscourtwithoutmakinganyattempttoquestiontheintegrityand/orvalidityofthesaidscan, will only seek to ask why the plaintiff’s initial reaction was not an outright denial of the pregnancy after he (plaintiff) was informed by the defendant of same, but rather gave defendant money for a scan? This obvious was because the plaintiff knew the possibility of his inclusion in the paternity of the child as someone who had had sexual intercourse with the defendant for a period. And again if the basis for the plaintiff’s subsequent rejection of the pregnancy was the age of the pregnancy which was four (4) months and five (5) days, then the question to ask is for how long did the plaintiff date the defendant before the pregnancy? Plaintiff never stated in his evidence the duration of their relationship before the pregnancy. So 6 if the defendant was in a love and amorous relationship with the plaintiff and later became pregnant and mentions the plaintiff, I do not in all fairness see how that amounts to or constitute any act of embarrassment as the plaintiff claims. Did the parties not have sexual intercourse?Yes,theydid.Andiftheydidanddefendantgetspregnant,whycan’tshemention the plaintiff? With the DNA result excluding the plaintiff from the paternity of the child, that only settles the issue of the child’s paternity, it does not say the plaintiff never had sexual intercoursewiththeplaintiff. Alsoontheissueoftheplaintiff’sclaimforsomecompensatorydamagesofGH₵2,000.00onthe basis of humiliation and harassment, I do not see from the evidence any act of humiliation and embarrassment perpetrated against the plaintiff herein. If the plaintiff considers the mention of his name in connection with the pregnancy as embarrassing, then in all fairness and respect to thedefendantherein,theplaintiffshouldhaveequallyconsideredhishavingsexual intercourse with the defendant also as embarrassing. If plaintiff did not see having sex with the defendant as disgraceful, I do not see how his name been associated with the defendant’s pregnancy as disgraceful,inallfairness. On issue of the plaintiff’s prayer that the court orders defendant to announce on all radio stations and information centers in Nsawkaw that he is not responsible for her pregnancy, it must be noted that the defendant form the evidence never sat on any radio station or information center and said plaintiff impregnated her. In fact plaintiff himself has not proved any evidence that the defendant caused any announcement to be made that plaintiff impregnated her (defendant). The only forum the defendant took plaintiff to was CHRAJ at Nsawkawthatwas after she(defendant) deliveredthebaby.Defendant even went thereforthe 7 plaintiff to be invited to discuss issues about the maintenance of the child not to be considered as embarrassing or humiliating. If the defendant after all efforts failed to get the plaintiff help take care of the child she believed was the plaintiff failed, thatwas the next step she could take togetsomejustice.Thatinmyconsiderviewwasnotandisstillnotwrong. Finally, on the issue of the DNA and the cost of it. It is clear that the complaint that defendant tooktoCHRAJwasnotforaDNAtestorforadeterminationofthepaternityofthechild.What defendant went to seek at CHRAJ was maintenance of the child. The DNA came up after the plaintiffdeniedthepaternityofthechild.WhenCHRAJmootedtheideaandwhichtheplaintiff supported, the office of CHRAJ then asked both parties to contribute for the procedure. That wasevenwhytheplaintiffelectedtopaymorethanhalfof thecost(GH₵4,000.00).If itwas not the idea of the plaintiff or the fact that plaintiff vigorously supported same, why did he (plaintiff)notinsistthattheypayequallyi.e.GH₵3,000.00each?Soifdefendantwaspersuaded or literally forced to accept and for which she went for a loan of GH₵2,000.00 it will be utterly unfair to demand that she again refund the plaintiff’s GH₵4,000.00. That will mean that the defendant bears all the total cost of the DNA test which is GH₵6,000.00. This will be a traversy ofjustice. SofromtheevidenceIfoundthefollowingasfacts; 1. That the parties were in an amorous sexual relationship at Nsawkaw after the plaintiff metthedefendantandproposedlovetoherwhichthedefendantaccepted. 2. Thatthedefendantlaterbecamepregnantandinformedtheplaintiff. 3. That plaintiff never denied having sexual intercourse with the defendant but only deniedthepregnancy. 8 4. Thatboth parties were madeto contributefor a DNA whichidea didnotcome fromthe defendant. 5. That the defendant never embarrassed or humiliated the plaintiff but only mentioned his as the one she believed responsible for her pregnancy on the basis of the sexual intercoursetheyhad. Thissuitbeingacivilone,thelawisthatthepartywhoinhis/herpleadingsorwritofsummons rise issues that are essential to the success of their case assumes the onus of proof. See Faibi Vs StateHoelsCorp.[1968]GLR,176. Thispositionofthelawaboveisarestatementoftheprovisionofsections11(4)oftheEvidence Act,1975(NRCD323). Section 11 (4) states that; “In other circumstances the burden of producing evidence require a party to produce sufficient evidence so that on all the evidence a reasonable mind could concludethattheexistenceofthefactwasmoreprobablethanitsnon-existence. Therefore from the provisions of section 11 (4) above, the party carrying the burden must produce or lead sufficient evidence to make out a case on the preponderance of the probability asdefinedinsection12(1)ofNRCD323. Section 12 (1) states that “Except as otherwise provided by law, the burden of persuasion requiresproofbythepreponderanceofprobabilities”. Thereforeinassessingthebalanceofprobabilities as perthe evidenceadduced, all the evidence must be considered and the party in whose favour the balance tilts is the person whose case 9 oughttobeadjudgedasmoreprobableanddeservingofafavourableverdict.Ifthepartiesfails toprovetheircase,thensamefails. From the evidence as adduced and the law as stated, and on the basis of the findings of facts made,itistheconclusionofthiscourttheplaintiffhasfailedtoprovehisclaimsandsamefailed. Thereasonsfortheaboveconclusioninclude; 1. That the plaintiff proposed love to the defendant and defendant accepted and the two startedarelationship. 2. That the two had sexual intercourse during the period of their relation with the defendantsubsequentlybecomingpregnant. 3. ThatiftheDNAshows plaintiffisnotthefatherofthechildthatdoesnotmeanplaintiff neverhadsexwiththedefendant. 4. That I do not see how the defendant initially naming plaintiff as the one responsible for thepregnancyconstituteharassment. 5. That the defendant did not propose the idea of a DNA test and did not also take plaintifftoCHRAJforaDNAtest. 6. Thattheplaintiff failed to provehis claims on the preponderanceof probabilities and as requiredbylaw. Thefollowingordersaremadeaccordingly; 1. Theclaimsoftheplaintiffaredismissedentirely; 2. CostofGH₵1,000.00forthedefendantandagainsttheplaintiff 10 …………………………….. ISSAHABDUL-WAHAB (MAGISTRATE) 11