Amoah-adade Vrs University Of Cape Coast [2023] GHACC 251 (18 April 2023)

IN THE CIRCUIT COURT OF GHANA HELD AT CAPE COAST CENTRAL REGION ON TUESDAY 18TH DAY OF APRIL, 2023 BEFORE H/H DORINDA SMITH ARTHUR (MRS.), CIRCUIT COURT JUDGE. _____________________________________________________________________ SUIT NO. C11/25/2021 SETH KWESI AMOAH-ADADE. ... PLAINTIFF VRS UNIVERSITY OF CAPE COAST … DEFENDANT ______________________________________________________________________ JUDGMENT INTRODUCTION The plaintiff issued a writ of summons and he is claiming for a declaration that the defendant’s driver, Michael Kofi Takyi, whilst in charge of the defendant’s Toyota Hiace Bus with Registration No. ER 5246 –X on 8th August 2017 did negligently cause extensive damage to the plaintiff’s Taxi car with Registration No. CR 573 Y at Akakpo roundabout, UCC, Cape Coast; recovery of an amount of Ghc 35,000 being the replacement value of plaintiff’s Toyota Primera taxi Cab with Registration No. CR 573 Y, which Defendant’s driver negligently crashed into; compensation of Ghc 46,000 for loss of use of plaintiff’s taxi Cab from date of accident to date of commencement of action; interest on the amount claimed in relief © to date of final payment; damages for negligently causing damage to Plaintiff’s vehicle. The Plaintiff served the defendant with the writ of summons and the nineteenth paragraph statement of claim on 22nd December 2020. The Defendant entered appearance on 30th March 2021 and filed a Statement of Defence on 8th April 2021. Upon service of the Statement of Defence on the Plaintiff, he filed a motion on notice for judgment on admission under Order 23 R 6(2) of High Court [Civil Procedure] Rules, 2004, C. I. 47 on 17th August 2021. Counsel for the Defendant/Despondent did not file an affidavit in opposition but rather filed a motion on notice for leave to amend Statement of Defence. The motion was granted in part and on 29th of March 2022, counsel for the Defendant filed the Amended Statement of Defence pursuant to leave granted on 24th February 2022. Then on 19th May, 2022, Counsel for the Plaintiff moved the motion for judgment on admission and same was granted as prayed for the Plaintiff against the defendant. At the close of the pleadings, the parties were referred to CCADR for them to attempt mediation but same was no successful. Thereafter, the Plaintiffs formulated three issues which were set down as issues to be determined as follows:- 1. Whether or not the Defendant’s driver negligently drove into Plaintiff’s vehicle resulting in a car crash. 2. Whether or not Plaintiff negligently contributed to the car crash. 3. Whether or not Plaintiff’s vehicle was in working condition prior to the car crash. EVALUATION OF EVIDENCE, FINDING OF FACTS AND APPLICATION OF LAW A plaintiff in a civil case has the legal and evidential burden to produce admissible evidence to prove his/her claim and assertions on the preponderance of probabilities. See Sections 11(4); 12(1) and 14 of the Evidence Act, 1975 (NRCD 323.) This position of the law is reiterated in the Supreme Court case ADWUBENG VRS DUMFEH [1996-97] SCGLR 660 where the court crystallized the standard of proof required in all civil actions at holding 3 of the head note as follows: “Section 11 (4) and 12 of the Evidence Decree, 1975 (NRCD 323) (which came into force on 1 October 1979) have clearly provided that the standard of proof in all civil action was proof by preponderance of probabilities-no exceptions were made.” Also in ACKAH VRS PERGAH TRANSPORT LTD [2010] SCGLR 729, Holding (1) the Supreme Court per curiam, held that; “It is a basic principle of 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.” Thus, for a court to decide a case one way or the other, each party to the suit must adduce evidence on the issues to be determined by the court to the standard prescribed by law. This position is supported by Section 12(2) and Section 14 of the Evidence Act 1975 (NRCD 323). Further, in ABABIO VRS. AKWASI IV [1994 – 1995] GBR 774 Aikins JSC expounded that: “The general principle of law is that it is the duty of a Plaintiff to prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the 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”. By the above statement of the law Aikins JSC reiterated the position of the Supreme Court that the party who asserts has the burden of proof in the case of ACKAH V. PERGAH TRANSPORT LTD & ORS [2010] SCGLR 728. See also ZABRAMA V. SEGBEDZI. [1991] 2 GLR 221. Therefore, the burden is on both the plaintiff and defendant to prove on the preponderance of probability their various assertions pertaining to the issues to be determined by the court are credible. Here, the evidence to be adduced in support of this positive assertion must be credible evidence as was explained by Georgina Woode CJ in CONTINENTAL PLASTICS ENGINEERING CO. LTD. VS. IMC INDUSTRIES-TECHNIK GMBH (2009) SCGLR 298 AT 307. This credible evidence as held by the Supreme Court is any corroborative evidence that exist and which was likely to be believed by the Court as true ought to be provided. See FOSUA & ADU-POKU VRS ADU-POKU MENSAH [2009] SCGLR Here, the court ought to prefer corroborated evidence of a party to the uncorroborated evidence of another especially when the corroboration comes from the evidence of that party’s opponent. See TONADO ENTERPRISES VRS CHOU SEN LIN [2007-08]1 SCGLR 135. Before the issues that were set down for the trial are determined, I want to determine firstly the issue of capacity. This has become necessary as the defendant attempted to raise same in its Amended Statement of Defence after the case had been set down for hearing. The defendant pleaded at paragraph 2 and 2(a) of his Amended Statement of Defence as follows: “2. The defendant denies paragraph 1 and 3 of the Statement of Claim and in response states that the registered owner of the taxi with registration number CR 573 Y is one Josephine Abraham and not the plaintiff. 2a. The defendant states that the Plaintiff not being the registered owner of the taxi vehicle lacks capacity to sue and maintain the present action.” In view of those averments, the defendant is seeking to raise the capacity of the plaintiff to institute this action even though same was not raised as an issue. In the case of ASANTE – APPIAH VRS. AMPONSAH ALIAS MENSAH (2009) SCGLR 90 Brobbey JSC held at page 95 as follows: “…where the capacity of a person to sue is challenged, he has to establish it before his case can be considered on the merits…” And in his dissenting opinion in the case of NEW PATRIOTIC PARTY VRS. NATIONAL DEMOCRATIC CONGRESS (2000) SCGLR at 491 Kpegah JSC opined on ‘locus standi’ in the following words. “It is therefore important that a person intending to commence an action in any court must advert his mind to certain important and relevant matters before initiating his action, or he will be out of court..............” One of these is that an intending Plaintiff must be certain that he has capacity, for without capacity, his writ, will be a nullity and void ab initio”. This case reaffirm the decision in SARKODIE VRS. BOATENG II [1977] 2GLR 343 that: “It is now trite learning that where the capacity of a Plaintiff, or complainant or petitioner is put in issue, he must, if he has to succeed, first establish his capacity by the clearest evidence”. Flowing from the decisions stated supra, the court has to determine whether the plaintiff has capacity to commence or institute this case as of first importance. From the pleadings and adduced evidence on record, the plaintiff is seeking reliefs under negligence, damages, and intentional interference with a chattel under the Law of Torts. In that regard, the person who was in possession, in control/charge, or who is the owner of the damaged or trespassed chattel that has capacity to sue. See FORSON VRS. KOENS [1975] 2 GLR 479. The plaintiff testified that on 8th August 2017, he had parked his taxi at Akakpo roundabout, UCC to offload eggs for a passenger when the defendant’s bus driven by his employee, Michael Kofi Takyi, veered off its lane and ran into the plaintiff’s stationary taxi. From the adduced evidence, it is not in dispute that it was the plaintiff who was in possession and in control of the taxi vehicle with registration number CR 573 Y at the time the defendant’s agent veered off his lane and hit the taxi cab. Also, the evidence of the plaintiff being the person in charge/possession or in control of the taxi cab was never disputed by the defendant and from the adduced evidence at all material times, the defendant has dealt with the plaintiff either at the criminal case, before the civil case in their offices, and in this case. As it was the plaintiff who was in charge/possession and or in control of the taxi cab at the time the defendant’s agent smashed the taxi cab, he is clothed with capacity to institute this action. Notwithstanding, the plaintiff also led evidence to establish that he had an oral agreement with the owner through her agent and was using the car as “work and pay” basis where he had then completed the payments awaiting transfer of the title deeds into his name when the accident occurred. The evidence of the plaintiff was not discredited under cross examination and it is reasonably probable as from the adduced evidence no other person has come to claim ownership of the car except the plaintiff. On that note, the issue of capacity is determined and the plaintiff is deemed as having capacity to commence and maintain the matter. I then move to the first issue which is whether or not the Defendant’s driver negligently drove into Plaintiff’s vehicle resulting in a car crash. The Tort of negligence has evolved since DONOGHUE V STEVENSON (1932) AC 562 and it is a legal wrong that is suffered by the plaintiff at the hands of the defendant who fails to take proper care to avoid what a reasonable man would regard as foreseeable risk. From the evidence, the plaintiff stated that the defendant’s employee by name Michael Kofi Takyi was driving a Toyota Hiace bus with registration number ER 6246 X on 08/08/2017 and he veered off his lane and hit his car which he had parked and damaged his car. He corroborated his evidence with a Police accident report. He continued that the defendant’s driver was found guilty of careless and inconsiderate driving in a criminal case that followed the accident and fined. The evidence of the plaintiff was also corroborated by the witness of the defendant to the effect that the defendant’s driver was found guilty of careless and inconsiderate driving. In the case of TONADO ENTERPRISES VRS CHOU SEN LIN [2007-08]1 SCGLR 135 it was held that the court ought to prefer corroborated evidence of a party to the uncorroborated evidence of another especially when the corroboration comes from the evidence of that party’s opponent. See also AGYEIWAA VRS P & T CORPORATION (2007-08) SCGLR 985 where it was held that: “Where the evidence of an opponent corroborates the evidence of the opposite party and the opponent’s remain uncorroborated, the court is bound to accept the corroborated evidence unless there are compelling reasons to the contrary”. Thus, the evidence of the plaintiff as corroborated by the witness of the defendant is wholly accepted as credible evidence. Also, the defendant will only be liable to the Tort of negligence where the harm or damage was reasonably foreseeable from the result of the defendant’s conduct. Here, from the evidence and Exhibit A, the defendant’s driver “on reaching a spot at Akakpo roundabout, he failed to exercise due care and attention and veered off his lane and hit the rear portion of Nissan Primera Taxi cab with registration number CR 573 Y and Passat saloon car number GT 268 09 which were parked… all the vehicles got damaged.” The conduct of the defendant’s driver is referred to per Exhibit A as failing to exercise due care and attention and that is another meaning of being negligent. And by that negligent act, he veered off his lane and caused damage to the taxi cab. This shows that the plaintiff has suffered loss or damage as a direct consequence of the defendant’s driver breach of his duty of care towards other road users. This is so because if it had not been for the actions of the defendant’s driver, the plaintiff’s car would not have gotten damaged. Thus, it is safe for the court to conclude on the preponderance of the probability that the action of the defendant’s driver resulted in the damage to the plaintiff’s taxi cab. This conclusion is supported by the evidence that the defendant’s driver was also found guilty or pleaded guilty in a criminal trial where he was fined even though the judgment of the criminal case is deemed as a rebuttable presumption for the admission of negligence. See YAMUSAH VRS. MAHAMA [1991] I GLR 549. Where Benin J held that “ the fact that a party had pleaded guilty at the criminal trial was admissible in subsequent civil proceedings in proof of negligence…it was only a prima facie evidence of his admission of negligence or it was evidence that by his own conduct he had accepted his fault…” It is noted that this evidence of the defendant’s driver being negligent or admitting to being negligent in the criminal case was not disputed by the defendant during the trial and neither was it rebutted and thus the court find as a fact that the defendant’s driver was negligent which resulted in the accident. The second issue is whether or not the plaintiff negligently contributed to the car crash. Contributory negligence is one of the defences that a defendant can mount to ensure that any amount that would be awarded to the plaintiff may be reduced. By this the onus of proof shifts to the defendant to prove that the plaintiff contributed to his damage. Here, the cause of the damage can be determined from the proven facts of the case to show that the accident would have occurred but the damage would not have been severe or to a certain degree if the plaintiff had not parked at the place he did. The defendant testified at paragraph 7 of his witness statement that the plaintiff should not have parked his car at the roundabout since no parking space was demarcated or created there. He continued that the plaintiff should not for the purpose of loading or unloading a passenger or passengers baggage stop at that place but only at a designated bus stop, taxi stand or terminal. So according to the defendant, the plaintiff contributed to the cause of the road accident because if he had not wrongly parked there, his vehicle would not have been involved in the accident. From the evidence of the defendant, the plaintiff contributed to the cause of the road accident and that is not a ground for the court to consider determining contributory negligence. There are plethoras of decided cases which go to show that contributory negligence may only succeed if the defendant is able to prove that the plaintiff contributed to the damage caused and not to the cause of the accident itself. See KOTIAWUSU V GOKA [1992] 1 GLR 302; NANCE VRS BRITISH COLUMBIA ELECTRIC RAILWAY CO. LTD [1951] A. C. 601; STAPLEY VRS GYPSUM MINES LTD [1953] A. C. 663. All the evidence led by the defendant’s witness was to show that the plaintiff by parking at the roundabout contributed to the cause of the accident. The plaintiff had testified that he parked inside the triangle at the roundabout to allow a passenger offload eggs from his taxi when the defendant drove into his taxi. According to the plaintiff there are no designated bus stops on that stretch of the road. His evidence was corroborated by the DW1 to the effect that he had parked in the triangle at AKakapo roundabout. So will the damage caused to the plaintiff’s car be different if he had parked at a bus stop? Considering the fact that the defendant drove without due care and attention and veered off his lane causing the accident, what contributed to the damage caused to the car that can be attributed to the plaintiff and not what caused the accident? If the plaintiff had parked in the triangle due to an emergency will the defendant still raise the defense of contributory negligence? Did the defendant report the plaintiff to the police for parking illegally at an undesignated area for a taxi? The defendant did not lead any evidence to prove any of the questions raised above and by that the court will not consider the action of the plaintiff as contributing to the damage caused to his car. There is no evidence to prove that the plaintiff contributed to the damage caused to his car for the court to determine otherwise. The last issue is whether or not the plaintiff’s vehicle was in working condition prior to the car crash. From the adduced evidence, the plaintiff’s car was in working condition prior to the accident. According to the plaintiff, he was working that day and had driven the taxi where he parked in the triangle at the Akakpo roundabout before the accident. It is noted that the defendant indicated in its Amended Statement of Defence that the plaintiff’s car had been faulty and parked for days at Dickson circle and I hope it was a cut and paste error as there was no evidence indicating that the plaintiff’s car was parked at anywhere except at Akakpo roundabout. Further, the second page of Exhibit A under vehicle examiner’s report show that the braking, suspension, transmission, and electrical systems of the plaintiff’s car were in good working order before the accident. The exhibit was not disputed by the defendant, challenged or discredited as such the court accepts same. The court thereby finds as a fact that the plaintiff’s car was in working condition prior to the accident. With regards to the reliefs sought, the plaintiff is seeking recovery of an amount of Ghc 35,000 being the replacement value of the plaintiff’s Nissan Primera taxi cab which the defendant’s driver negligently crashed into. The plaintiff did not tender any documentary proof of how he arrived at the amount of GhȻ 35,000. The amount being claimed is for a replacement of the vehicle. Even though the plaintiff did not produce any document as proof of the replacement value, the amount being claimed is reasonable for a replacement of a Nissan Primera vehicle. This is because one need not be a car dealer to ascertain that the amount of GhȻ 35,000 being claimed for the value of even a third hand car in Ghana is less than being reasonable even as at 2017 when the accident occurred. The amount of GhȻ35000 being claimed is hereby accepted as reasonable. This is because the basic rule for award of damages is for the plaintiff to be restored to his position before the tort was committed. In this case the car was damaged beyond repair so the measure of the loss is the market value of the car at the time of it was damaged by the defendant’s driver. See PETER ANKOMAH VRS CITY INVESTMENT COMPANY LIMITED (CIVIL APPEAL NO. J4/13/2011, JUDGMENT DELIVERED ON 30TH MAY 2012); BORKETEY VRS ACHINIVU & ORS [1960] GLR 92. I must state that counsel for the plaintiff should have at least sought it prudent to have applied to any car dealership for an invoice for the court to have understood in clear terms what the value of the replacement would be instead of allowing the court to use the reasonable test. The next relief is for a compensation of Ghc 46,800 for loss of use of plaintiff’s taxi Cab from date of accident to date of commencement of action. Here, the plaintiff testified that he was deprived of his daily earning of fifty Ghana Cedis because his car was damaged beyond repair. He is seeking the amount of GhȻ 46000 for the period of three years. The plaintiff is entitled to compensation for loss of use of his taxi cab but the court is to consider the reasonable time within which the defendant should be made to pay for the loss. It is not reasonable for the court to expect the defendant to have gotten money to replace the damaged car within the shortest possible time. He was not working so no financial institution would have offered him financial assistance. He testified that after chasing the defendant for more than two years, he went into farming for his sustenance. It would be unreasonable for the court to expect the plaintiff to produce documentary proof of his daily earnings as a taxi driver. The ordinary taxi driver in Ghana does not keep proper accounts of their daily sales and especially when the person is not literate. It would be unfair and unjust for the court to allow technicalities to deprive a person of what he is justly entitled. Besides, UCC should not be allowed to benefit from their own wrong doings to the detriment of the plaintiff. The plaintiff from the evidence was even prepared to accept any amount from the defendant as settlement but he did not hear from the defendant and unless compelled by the court, the defendant will not compensate him. The evidence of the plaintiff and that of the defendant have been considered and the court is of the view that GhȻ 50 for twenty four months can be said to be a reasonable time since the accident occurred in 2017. Which means instead of GhȻ46000 the court is of the view that an amount of GHȻ 36,500 is a reasonable amount as compensation for loss of earnings. DISPOSITION I have considered the entire evidence adduced by the plaintiffs, the defendants and the witnesses and the pleadings as filed and I humbly agree with Sakodee- Addo, Ollennu and Blay JJ. S. C In the case of Barima Gyamfi and Another v Ama Badu (1963) 2 GLR at 597 stated among others that; “In a civil case, the decision must be upon the balance of probabilities established by preponderance of the evidence. Where the preponderance of the evidence is in favour of the plaintiff, a judge is fully justified in granting the plaintiff’s relief sought”. Therefore, I enter judgment in favour of the plaintiff against the defendant as follows: 1. Plaintiff to recover from the defendant the amount of GhȻ35,500 which is inclusive of the admitted amount of GhȻ 15000. 2. Defendant to compensate the plaintiff with the amount of GhȻ 36,500 for loss of earnings for 24 months. 3. Interest on the amount of GhȻ 36500 to be assessed from August 2017 to date of final payment at the prevailing bank rate. See Order 1(a) of the Court (Award of Interest and Post judgment Interest) Rules, 2005, C. I. 52 and the case of BUTT VRS CHAPEL HILL PROPERTIES LTD (2003-2004) SCGLR 636 at holding 2 where it was held that “where the justice of the case demands, interest may be ordered by the court even if not expressly claimed.” 4. I award general damages of GhȻ 10,000 for the plaintiff against the defendant. 5. Finally, on the issue of costs, I am directed to consider Order 74 of C. I. 47 and on the authority of the Court of Appeal case of GATCO CHEMPHARAM v. PHARMADEX (GHANA) LIMITED [1999-2000] 2 GLR @262 to award an amount that is fair and reasonable for the successful party. I hereby award the cost of GhȻ 10,000 for the plaintiff against the defendant. H/H DORINDA SMITH ARTHUR CIRCUIT COURT JUDGE PAAPA NIMAKO DANKWA ESQ. FOR PLAINTIFF/APPLICANT PRESENT PHILIP YOUNG ESQ FOR SOLOMON FAAKYE ESQ. FOR DEFENDANT/RESPONDENT PRESENT.