MICHAEL ADDO OSEI VRS GOLDEN BEACH HOTELS (GH) LTD (C2/64/2023) [2023] GHACC 1096 (14 March 2023)

IN THE CIRCUIT COURT OF GHANA HELD IN ACCRA ON TUESDAY, 14TH DAY OF MARCH 2023 BEFORE HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. MICHEAL ADDO OSEI VRS GOLDEN BEACH HOTELS (GHANA) LTD C2/64/2022 JUDGEMENT The Plaintiff per a Writ of Summons and Statement of Claim issued from the registry of this Court, against the defendant dated 01/12/21, claiming the following: i. General damages in the sum of Five Hundred Thousand Ghana Cedis (GHC 500,000.00) for injury and vehicle damage sustained on the premises of La Palm Royal Beach Hotel. Special damages in the sum of GHC 9,600 for the cost of repair of vehicle damage. Special damages in the sum of GHC 1,000 for medical expenses. Costs including legal fees. Any other order(s) as the honourable Court may deem fit. ii. iii. iv. v. The affidavit of service filed by the bailiff on record indicates that the defendant was served on 7/12/2021 at 1:40 pm and a search conducted by Plaintiff Counsel also confirmed same. On the 05/01/2022 Counsel for Plaintiff filed a motion Ex Parte for judgment in default of appearance. On the first day the suit was called in court, 11/01/2022, Counsel for plaintiff submitted that the business for the day was to move a motion for judgment in default of appearance but they seek leave to withdraw the application as they intend to amend the writ and statement of claim. The application was therefore struck out accordingly as withdrawn. Then on the 28/01/2022, a motion Ex Parte for judgment in default of appearance was filed on behalf of the plaintiff. Which meant the plan to amend the writ and the statement of claim, per the strategy of the plaintiff was abandoned. The application was praying for final judgment in default of appearance in respect of reliefs (ii) and (iii) and interlocutory judgment in default of appearance in respect of relief (i). The application was moved on 01/02/2022, the returned date on the motion paper. The application was granted by the court as prayed by Counsel for Plaintiff/Applicant. The plaintiff on 03/02/2022 filed an application for direction for the issues to be set down for the plaintiff to prove his case with respect to Relief (i). On the 15/02/2022 , the application was moved by Counsel, and she prayed the court that the issues filed should be set down as issues for trial by the court. These issues were set down as issues for trial by the court. a. Whether or not there was a pit on the premises of the Defendant? b. Whether or not the said pit was an unusual danger? c. Whether or not the pit was fenced? d. Whether or not the Defendant warned persons entering its premises of the unusual danger? e. Whether or not the Defendant took reasonable care to prevent injury to the plaintiff while the plaintiff was on the Defendant’s premises? f. Whether or not the plaintiff sustained damage to his vehicle on the defendant’s premises due to the defendant’s negligence? g. Whether or not the plaintiff sustained injury to his body on the defendant’s premises due to the defendant’s negligence. The court afterwards gave further orders as to the filing of witness statements and pretrial check list and service of same and suit was adjourned for case management conference (CMC). On the 29/04/2022, a “notice of entry of appearance” was filed by Counsel on behalf of the defendant and on that day when the case was called before the court, Counsel appeared for the defendant and submitted that they just been appointed as solicitors of the defendant and needed time to put their house in order and the court directed accordingly. The defendant later filed their statement of defence on 10/06/2022 before the court which was without leave. Parties afterwards attempted settlement and on 01/07/2022, one Godfred Nyarko holding brief for Justin Amenuvor, submitted before the court that they needed more time as the board has approved that the plaintiff be paid some money and they need time to make proposals to the plaintiff so that parties can file terms. However, on the 30/08/2022 Counsel for plaintiff submitted before the court that the attempted settlement has broken down and prayed for a date for case management conference. At the case management conference, the witness statement of the plaintiff was identified and the exhibits that he wants to rely on were also identified. After, Counsel submitted that defendant appeared through Counsel and the application granted with respect to the final judgment of relief ii and iii and the interlocutory judgment has not been set aside. The Court therefore adjourned the suit for hearing for the plaintiff to prove their case and hearing notice was ordered to be served on the defendant. On the 13/12/2022, Counsel for both Plaintiff and defendant were present before the court and hearing commenced. The plaintiff relied on his witness statement and tendered exhibits A-G, without any objection from defence counsel, and relied on them as his evidence in chief before the court. And as the plaintiff was to prove the damages, the defendant counsel cross examined the plaintiff and on the next adjourned date, counsel for the defendant further cross examined the plaintiff, after which the case came to an end and same was adjourned for judgment. Parties were to file addresses by 28/02/2023, but as at the time of the judgment no addresses have been filed by the parties before the court. THE CASE OF THE PLAINTIFF: The plaintiff is a reputable businessman of about 30 years of experience in business marketing, worked as a marketing manager for a number of companies and presently marketing consultant for Nsoroma GPS Limited. The defendant owns a number of hotels including the La Palm Royal Beach Hotel at LA, Accra. It is the case of the plaintiff that on 13th August 2021, he went to the premises of the La Palm Royal Beach Hotel at LA, Accra to patronize their services. The plaintiff avers that while on the defendant’s premises, he sustained severe damages when his car entered a pit on the defendant’s car park. The plaintiff says that the impact of the fall into the pit damaged the engine, bumper and front tyres of his jeep patriot. The Plaintiff indicated that the impact of the fall into the pit caused him to suffer injury to his body and he is presently experiencing post traumatic pain in his back and knees which has resulted in slight difficulty in walking for him. Plaintiff states further that the injury and damages he sustained on the defendant’s premises as a result of the Defendant’s negligence, continues to burden him both medically and financially. The plaintiff particularized the negligence of the defendant and stated that the defendant knew or ought to have known of the existence of the pit on its car park and failed to fence the pit. The plaintiff stated further that the defendant failed to warn persons entering its premises of the dangerous pit and also failed to take reasonable care to prevent injury to the Plaintiff. The plaintiff avers that he has made demands on the Defendant to compensate him for the injury and damages sustained on its premises, but the defendant has failed and neglected the Plaintiff’s demands. It is the case of the plaintiff that unless compelled by the honourable court, the defendant will not compensate him. The following exhibits were tendered before the court. Exhibit A is a photograph showing the damaged vehicle after the incident. A1-Photograph showing the damaged tyre when it entered the pothole, A2 photograph showing the damaged radiator for the vehicle. Exhibit B and B1 were receipts showing expenses to repair of the vehicle. Exhibit C was the medical report of the plaintiff after the accident. Exhibit D – Physiotherapy appointment card after the plaintiff was referred for physiotherapy. Exhibit E was receipt for medication, E1 receipt from Ghana Armed Forces for medical report and E2 receipt for medical laboratory services paid by the plaintiff for his medical care. Exhibit F was a picture of the pit/pothole on the defendant premises. Exhibit F1 was a picture showing the depth of the pit/pothole that caused the damage of the plaintiff vehicle. Plaintiff gave evidence of the fact that after the accident, the defendant had covered the pit/pothole in their premises. This evidence of the plaintiff did not end there but the plaintiff exhibited a picture of same and it was Exhibit F2 it was a picture showing the repaired pit/pothole in the premises of the defendant after the accident. The plaintiff tendered finally exhibit G which was pendrive showing the video footage of how the accident occurred in the premises of the defendant. As indicated earlier, the hearing was conducted for the plaintiff to prove his case with respect to the relief (i) which was General damages in the sum of Five Hundred Thousand Ghana Cedis (GHC 500,000.00) for injury and vehicle damage sustained on the premises of the defendant facility, La Palm Royal Beach Hotel as final judgment has been entered for the plaintiff with respect to relief (ii) and (iii) already. In civil cases, when the plaintiff ought to prove his/her case, the plaintiff has a burden to prove his case by the preponderance of probabilities and this is indicated in sections 11(4) and 12(1) of the evidence Act 1975 (NRCD) 323. Section 11(4) provides that: “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.” Section 12(1) also provides that: “except as otherwise provided by law, the burden of persuasion requires proof by preponderance of the probabilities”. See the case of Adwubeng v Domfeh (1996-97) SCGLR 660 “It is trite law that pleadings are not evidence. To hold otherwise negates the requirements of proof as provided in the Evidence Act and well-known cases of Majolagbe v Larbi [1959] GLR 190; and Zabrama v Segbedzi [1991] 2GLR221.” In AG & 10 Ors v Anthony & 2 Ors [2015] 86 GMJ at 218, the court held: “Where the evidence led by the witness was just a repetition of the averments in the pleadings, that is not proof in law as enunciated in Majolagbe v Larbi [1959] GLR 190 and explained in Zabrama v Segbedzi [1991]2 GLR 221”. In the case of Ghana Highway Authority v Mensah (1999-2000) 2 GLR 237 holding 1 the court stated, negligence as a tort occurred when the defendant (i) owed a duty of care to the plaintiff; (ii) broke that duty by failing to come up to the standard of care required by law; and (iii) thereby caused legally recognized damage to the plaintiff. The burden of proving negligence is on the plaintiff and negligence is a question of fact and the burden is always on the plaintiff to prove his case on a balance of probabilities or to adduce evidence from which the inference can be drawn that the negligence of the defendant led to the accident. See: Nyame v Tarzan Transport and Anor (1973) 1 GLR 8 CA. Again, an occupier of land was under a general duty of care, in relation to hazards whether natural or man-made occurring on his land, to remove or reduce such hazards…. Vanderpuye v Pioneer Shoe Factory (1981) GLR 181 CA. The Court will now consider the issues which were set down for trial before the court as stated supra as the issues are very much related. The plaintiff obtained judgment for the liquidated claims which were the issues ii and iii. The plaintiff further obtained interlocutory judgment for relief (i) which was a claim for general damages of GHC 500,000. Therefore, the hearing was conducted for the plaintiff to prove his claim before the court with respect to relief (i). As has already been indicated the defendant who was represented by counsel was served with hearing notices all along and Counsel was present to represent the defendant. After the plaintiff was done with his evidence in chief proving his case before the court, Counsel for defendant cross examined him as required by law. The plaintiff relied on his witness statement to prove that his car suffered severe damages when his car entered a pit/pothole on the defendant’s facility car park that is in the premises of the defendant’s facility. The plaintiff tendered exhibit G which was a video footage on a pendrive showing how the car entered the pit in the premises of the defendant. From the evidence before the court this happened late in the evening. From the plaintiff it damaged the engine, bumper and the front tyres of his Jeep Patriot. Exhibit A series shows pictures of the car and the damaged parts. The plaintiff testified further that the damage to the engine has drastically reduced the value and strength of the vehicle and he has to frequent the automobile repair shop frequently. The plaintiff further testified that for two weeks when the damage on the car was being fixed, he spent money on transportation to go about his regular activities and it was because of the damage he suffered at the premises of the defendant. The plaintiff testified further that the accident caused him to suffer injury to his body and presently experiencing post traumatic pain at his back and knees and tendered exhibit C, medical report, from the hospital he attended. From exhibit C the report stated that the plaintiff was involved in an accident a week before and was complaining of waist pain and right and ankle joint pains. From the report diagnosis were made and treated. The principal medical officer concluded in the last paragraph, “With the above diagnoses established by X-ray, client was referred to physiotherapy department and to see Orthopaedic Surgeon for further evaluation and management. From the medical report and the above referral to physiotherapy, it will cause the plaintiff to spend money and also cause him great inconvenience and will also affect his work as a marketing consultant who engages in a lot of movement. The plaintiff also to see an Orthopaedic Surgeon, is likely to incur additional cost even on consultation and depending on the evaluation may have to spend more to completely treat the waist pain, right knee and ankle joint pain which may happen through surgical interventions which can be expensive. And that is why plaintiff said, the injury and damage sustained on the defendant’s premises continue to burden him both medically and financially. The record before the court shows the deep pit on the premises of the defendant and counsel for the defendant referred to it and rightly so as a pothole in her question of the plaintiff during cross examination. Q8. You would agree with me that with a pothole of this size any careful and prudent driver would have noticed it. A. That is absolutely false. Looking at the size of the pothole or the pit and with the water collection in the pit or pothole to the surface and the time that the incident occurred that is late in the night a careful and a prudent driver could have easily missed it. The best thing to do is what the plaintiff stated in his witness statement that it was not done. The defendant facility serving a lot of clients, both local and international, with lots of cars driving in and out of the car park, noticing such a hole developing to this size and deep should have fixed it immediately to protect life and property of clients and customers who patronizes their facility and to whom they have a duty of care. And if the defendant has not been able to fix the pothole or the pit in time, should have taking steps to fence the pit or pothole or warn persons entering its premises of the unusual danger for them to avoid it to keep patrons of the facility safe. This is not new to the hospitality industry where the defendant company operates as it is common knowledge the extent hoteliers go to warn their visitors of eminent danger or impending danger for them to avoid same. The common example of warning they usually give to the client, customers and visitors is for them to be ware of slippery floors during the time of cleaning or mopping of their floors. The plaintiff in his response to questions during cross examination in an answer to Q18 spoke of how he was help by the security personnel to lift the car from the hole which was not denied or traversed by the Counsel for the defendant. The defendant should have trained these security personnel, who could have drawn the patrons entering the facilities and leaving the facilities attention to the existence of the danger, as they help them to pack appropriately and leaving the facility. The plaintiff in proving his case tendered pictures of the pit/pothole and the depth of the pothole as exhibits F, F1 and the video footage exhibit G. The plaintiff also tendered a picture where the pothole is eventually fixed with a yellow plastic barricade in place with the name of the hotel written on it as warning. In the case of Kyerematen v Amadu (1972) 2 GLR 344, the Court held that, “negligence is the omission to do something which a reasonable man guided upon the considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” From the evidence before the court the plaintiff has been able to prove his case as required of the law and been able to demonstrate that he is entitled to damages as a result of the negligence of the defendant as demonstrated above. In conclusion, there was a pit on the premises of the defendant, which was an unusual danger and was not fenced and persons were not warned of the danger. The defendant did not take reasonable care to prevent injury to plaintiff on his premises and plaintiff sustained damage to his vehicle and injury to his body on the defendant premises due to the negligence of the defendant. That will be the resolution of the issues which was set down for trial. The plaintiff is therefore entitled to damages and will be awarded general damages of GHC 50,000. And cost of GHC 10,000 will also be awarded in favour of the plaintiff against the defendant. SGD HIS HONOUR KWABENA KODUA OBIRI-YEBOAH, CIRCUIT COURT JUDGE. 10