OBENG ALIAS NKOBIAHENE vs. DZABA [1975]DLHC412

Date	1975-10-21
Suit No.
Citation No.	[1975]DLHC412

ANDOH J.

DR. O. ASAMOAH FOR THE APPELLANT.

E. D. K. ADJABENG FOR THE RESPONDENT.

[1975]DLHC412
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													<main id="main" class="content" style="min-height: 60rem" >OBENG ALIAS NKOBIAHENE<o:p></o:p>&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;vs. <o:p></o:p>DZABA<o:p></o:p>&nbsp;[HIGH
COURT, HO]<o:p></o:p>[1976] 1 GLR 172<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
21 OCTOBER 1975.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DR. O. ASAMOAH FOR THE APPELLANT.<o:p></o:p>

E. D. K. ADJABENG FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ANDOH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANDOH J.<o:p></o:p>The short
but crucial point raised in this appeal is whether:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“putting
a person into fetish can found an action in our duly constituted courts for
damages or whether it should be regarded as a customary offence probably
punishable at the instance of the State by criminal prosecution as was done in
the past.”<o:p></o:p><o:p>&nbsp;</o:p>Francois
J. (as he then was) decided in a recent case of Adanuty v. Manchie, High Court,
Ho, 31 January 1969, unreported; digested in (1969) C.C. 84, that putting a
person into fetish was an actionable wrong because of the fear of Ghanaians of
the fetish and its evil force, which persists in Ghana today notwithstanding
the spread of evangelism.<o:p></o:p><o:p>&nbsp;</o:p>In this
appeal I have been urged by Dr. Asamoah, counsel for the appellant, not to
follow the decision of the learned judge. He urges that I should hold that
putting a person into fetish does not give a cause of action or, at any rate,
that the writ in this case, did not disclose any cause of action.<o:p></o:p><o:p>&nbsp;</o:p>The facts
culminating in this appeal are so simple and completely devoid of complexity.
The respondent (hereafter called the plaintiff) had made some farms on a piece
of land. He had planted yams, cassava and other crops on it. In the course of
harvesting, he once met the appellant (hereafter called the defendant) on the
land. He was weeding a brother’s abandoned farm preparatory to erecting a
structure. On seeing the plaintiff, he asked him on whose authority he was on
the land which he claimed absolute ownership thereof. The plaintiff mentioned
that he was on the land with the permission of the chief of Dafor. The
plaintiff finding that someone had uprooted his cassava swore the Fesi fetish
thrice to trace for him the author of the crime from whom he would collect a
huge sum of money before the redemption of the fetish. He then went to the
fetish priest to acquaint him with the swearing of the fetish. On the following
day, the defendant met the plaintiff again on the land. He also swore the Fesi
fetish that it should kill all those who had unlawfully taken his land but had
refused to attorn tenant to him if they ate the crops or food on the land.<o:p></o:p><o:p>&nbsp;</o:p>The
fetish priest sent for the plaintiff so as to go into the case. The fetish
priest asked to see the landlord of the plaintiff but the latter did not attend.
The plaintiff asked that the fetish be redeemed by the defendant to enable him
complete the harvesting of his crops. This request the elders refused until the
land had been inspected and a date was fixed for the purpose. Both parties
submitted to the jurisdiction of the Fesi priest and provided a bottle of
schnapps each. Before the day fixed for the resumption of the proceedings
occurred, the plaintiff took action in a district court grade II against the
defendant claiming ¢300.00 damages on the basis that the defendant had “starved
him and his family by swearing that the fetish should kill anyone who ate the
crops he had planted on the land.” The trial magistrate found the conduct of
the defendant unjustifiable and awarded ¢100.00 damages with costs of ¢26.00
against the defendant.<o:p></o:p><o:p>&nbsp;</o:p>