ABDULAI AND OTHERS VRS. RAHMAN AND ANOTHER (C12/64/2019) [2023] GHAHC 563 (23 November 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE SITTING AT KOFORIDUA ON THURSDAY THE 23RD DAY OF NOVEMBER, 2023 BEFORE HER LADYSHIP JUSTICE GIFTY DEKYEM (MRS.) 1. ADAMU ABDULAI 2. AMPA CONFIDENCE 3. DORIS TAWIAH ALI VS SUIT No. C12/64/2019 PLAINTIFFS 1. ABDUL RAHMAN 2. EXTRA GOLD MINING LTD DEFENDANTS PARTIES: 1st Plaintiff present and represents 2nd and 3rd Plaintiffs; 1st Defendant Absent; William Asiedu represents 2nd Defendant. COUNSEL: Joseph Awakpaksa Esq. for Plaintiffs Asuro Napari Esq. for 2nd Defendants (Absent) JUDGMENT The writ of summons shows the reliefs being claimed by Plaintiffs against the Defendants jointly and severally as follows: Page 1 of 16 a. General and Compensatory damages of GHS500,000.00 for negligence of the 1st Defendant causing the loss of the life of Mr. Ali Abudulai. b. Cost of children’s education and maintenance from April 2018 to March 2019 assessed at GHS20,000.00. c. Prospective cost of children’s education and maintenance (including health, food, clothing, housing assessed as follows: i. ii. iii. iv. Sumaila Ali, a 14-year-old Junior High School Student – GHS30,000.00 Safia Ali a 10-year-old pupil – GHS70,000.00 Issakah Ali, a 5-year-old Primary pupil – GHS80,000.00 Musah Ali, a 2-year-old nursery pupil – GHS100,000.00 d. Damages for the loss of dependence on the late Mr. Ali Abudulai by his four children and two wives (2nd and 3rd plaintiffs) e. Damages for the wrongful and unjust deprivation of the love, care, and affection that Ali Abudulai gave and would have given the Plaintiffs as well as his four young children as a result of the recklessness of the 1st Defendant. f. Costs including lawyers’ fees assessed at 20% of the claim. Facts The plaintiffs are the brother and two wives of the late Ali Abudulai. 1st Defendant is a contracted security worker of the 2nd Defendant, a mining company at Kwabeng. Mr. Ali Abudulai was a contracted security worker of the 2nd Defendant from 13 July 2017 until his demise on 12 April 2018. 1st Defendant admitted to the Police that a gunshot from his gun killed the late Ali Abudulai. Plaintiffs’ case. It is the case of the Plaintiffs that the negligence of the 1st Defendant resulted in the death of Ali Abudulai. They gave particulars of negligence as follows: Page 2 of 16 a. Failing to take reasonable care and skill while operating a dangerous weapon such as a gun. b. In the alternative, Plaintiffs shall rely on the doctrine of Res Ipsa Loquitur. It is the further case of the Plaintiffs that the 1st Defendant shot and killed Ali Abudulai during the course of his duties as a security officer of the 2nd Defendant. Plaintiffs averred that efforts to get the 2nd Defendant to compensate them for their loss have fallen on deaf ears hence their claim. Defendants’ case Judgment in default of defence was obtained against the 1st Defendant. 2nd Defendant generally denied the Plaintiffs’ claim and averred that the 1st Defendant was properly trained and licensed to handle a shotgun. It is the 2nd Defendant’s case that soon after the death of Ali Abudulai, its management held a meeting with the family of the deceased and both parties mutually agreed that the 2nd Defendant should pay GHS10,000.00 as compensation to the deceased’s family which they paid. 2nd Defendant averred that it continued to pay GHS750.00 as the salary of the deceased each month to the deceased’s family to assist with the care of the family and children as part of the mutually agreed compensation package. At the close of pleadings, the following issues were settled for trial: I. Whether or not the 1st Defendant who is an employee of the 2nd Defendant negligently caused the death of the deceased. II. Whether or not the 2nd Defendant is vicariously liable for the negligent act of the 1st Defendant which resulted in the death of the deceased. III. Whether or not the Plaintiffs are entitled to their claim. IV. Any other issue(s) as may arise from the pleadings. Page 3 of 16 The Evidence Act, 1975 (NRCD 323) provides on proof in civil cases in sections 11 and 12 as follows: Section 11 (4) In other circumstances the burden of producing evidence requires a party to produce sufficient evidence which on the totality of the evidence, leads a reasonable mind to conclude that the existence of the fact was more probable than its non-existence. Section 12 (1) Except as otherwise provided by law, the burden of persuasion requires proof by a preponderance of the probabilities. (2) “Preponderance of the probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the Court by which it is convinced that the existence of a fact is more probable than its non-existence. The Supreme Court in the case of Ababio v. Akwasi [1994/95] GBR 774 where at page 777 of the report, Aikins JSC stated as follows: The general principle of law is that it is the duty of a Plaintiff to prove his case; that is he must 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 Page 4 of 16 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. The onus is therefore on the Plaintiffs to prove their claim by a preponderance of the probabilities. In particular, the Plaintiffs have to prove that the 1st Defendant was negligent in causing the death of the deceased and further that the 2nd Defendant is vicariously liable for the 1st Defendant’s negligent conduct resulting in the death of the deceased. Evidence of Plaintiffs 1st Plaintiff testified on behalf of the plaintiffs. He testified that he is the brother of the deceased and 2nd and 3rd Defendants were the deceased’s wives. The deceased left behind his parents and four minor children. The Plaintiffs are administrators of the estate of the deceased. 1st Plaintiff testified that on 12th April 2018, he was at Koforidua when he received information via phone that the deceased whilst on duty for the 2nd Defendant as a security man was shot by an unknown person and was being rushed to the hospital. He testified that he visited the deceased before his death at the Koforidua Central Hospital where the latter told him all he could recollect was that, he and the 1st Defendant after going for their general rounds and heading towards the 2nd Defendant’s office, heard a gunshot when he was walking in front of the 1st Defendant. 1st Plaintiff testified that eventually, 1st Defendant admitted to the Kibi Police that the gun that killed the deceased was from his gun which belonged to the 2nd Defendant. According to 1st Plaintiff, 1st Page 5 of 16 Defendant explained that the gunshot accidentally happened when he slipped on his way with the deceased to the office. 1st Plaintiff testified that 2nd Defendant presented GHS10,000.00 to the deceased’s family which they used for his burial. He stated that the 2nd Defendant continued to pay the salary for the deceased to the mother of the deceased but the said money was inadequate considering the expenses made on each of the children in a month so they demanded GHS800,000.00 as reasonable compensation. 1st Plaintiff testified that when the 2nd Defendant failed to oblige their request, the Plaintiffs initiated the instant action claiming the reliefs aforementioned. 1st Plaintiff testified that since the death of the deceased was caused by the Defendants, they ought to step in to perform his role in providing for his parents, wives, and children. Plaintiffs attached to their witness statement exhibit ‘A’ being Letters of Administration granted the Plaintiffs to administer the estate of the deceased; exhibit ‘B’ is a copy of the bank statement of Adama Awudu (deceased’s mother) with the Mumuadu Rural Bank, Kibi showing deposits of the deceased’s salaries into the said account; exhibit ‘C’ are copies of private school fees receipts in respect of Abdulai Issaka and Abdulai Musah; exhibit ‘D’ is a school register showing the enrolment of Sumaila Ali in school; exhibit ‘E’ is a letter dated 20 March 2020 informing of Safia Ali having stopped school due to ill health; exhibit ‘E1’ is Safia Ali’s laboratory report; and although 1st Plaintiff stated exhibit ‘F’ is the medical report of the cause of death of the deceased, exhibit ‘F’ is District Coroner’s letter dated 19th February 2018 authorizing the burial of Ali Abdulai (deceased). It is noted exhibit ‘F’ predates the date of death of the deceased. Evidence of the 2nd Defendant. Page 6 of 16 Three witnesses testified for the 2nd Defendant. DW1, William Asiedu, the office manager of the 2nd Defendant testified that both the deceased and the 1st Defendant were engaged by the 2nd Defendant on a one-year fixed contract as security workers. According to him, the 1st Defendant was trained by the 2nd Defendant to handle a gun provided by the 2nd Defendant for security duties. DW1 testified that on the 11th April 2018, the 1st Defendant reported to the 2nd Defendant that whilst he and the deceased were on patrol duties, he tripped, fell, and his gun went off and hit the deceased thereby injuring him and subsequently passing away the next day. DW1 testified that police investigation revealed that the 1st Defendant had intentionally shot the deceased at the latter’s back thus 1st Defendant is standing trial for the murder of the deceased. DW1 stated that on the 18th April, 2018, 2nd Defendant’s agents and the family members of the deceased met and agreed on a compensation package comprised of a lump sum of GHS10,000.00 and monthly payment of the deceased’s salary to the deceased’s mother for the maintenance of the deceased’s children. In furtherance of this agreement, 2nd Defendant paid a lump sum of GHS10,000.00 and paid the deceased’s salary to his mother for 31 months, ceasing when the instant action was served on the 2nd Defendant. DW1 testified that the 2nd Defendant was not in any way negligent so as to cause the death of the deceased. 2nd Defendant contended it was thus not liable to the Plaintiffs’ claim. The testimonies of DW2, Yakubu Abdulai, the chief security officer of the of the 2nd Defendant, and DW3, Nurudeen Hassan, senior security officer of the 2nd Defendant more or less echoed DW1’s testimony. The only exhibits attached in support of the 2nd Defendant’s case were the working contracts between the 2nd Defendant and the 1st Defendant and the deceased respectively which were marked as exhibits ‘1’ and ‘2’. Page 7 of 16 In the evaluation of evidence adduced before the court in support and in defence of the claim, I will now turn to the issues settled for trial. Whether or not the 1st Defendant who is an employee of the 2nd Defendant negligently caused the death of the deceased. This calls for the establishment of negligence on the part of the 1st Defendant. Negligence is the failure to meet the settled standard of behaviour to protect society from unreasonable risk. Proof of negligence required the establishment of a duty of care owed to the plaintiff by the defendant that was breached resulting in damage or injury to the plaintiff. As negligence has been denied, the onus is on the Plaintiffs to adduce sufficient evidence in proof of negligence on the part of the 1st Defendant. In Byrne v Broadle 159 Eng. Rep. 299 (1863), the plaintiff was struck in the head by a barrel of flour from the defendant’s store whilst being lowered through the window. The court held that the defendant had been in control and possession of the barrel therefore there was a presumption that the defendant was negligent for its falling. The Plaintiffs stated the particulars of negligence as a failure by the 1st Defendant to take reasonable care and skill while operating a dangerous weapon such as a gun or in the alternative, plaintiffs shall rely on the doctrine of res ipsa loquitur. Although the 1st Plaintiff was not at the scene of the incident to have first-hand information as to what transpired when the deceased was shot, he contended that contrary to the assertion of the 2nd Defendant that the 1st Defendant’s gun went off when he fell and tripped, guns are normally locked unless the trigger is activated. In other words, the 1st Defendant ought to have done something positive to have triggered the gun to shoot and not by the 1st Defendant mere slipping resulting in an accidental shot. All the witnesses who testified in the trial for both parties were not present when the incident occurred to have testified about what they saw. The 1st Defendant did not participate in the trial to afford the elicitation of evidence through cross-examination. Be that as it may, the doctrine of res ipsa loquitur avails the Plaintiffs. It is the rule of law where negligence is presumed when Page 8 of 16 the object or situation that caused the injury or damage could not have occurred without the negligence of the defendant. In spite of the 2nd Defendant arguing forcefully that the 1st Defendant received adequate training in handling the gun, the fact still remains that the gun that killed the deceased was under the control of the 1st Defendant, and without negligence, the gun would not have triggered to kill the deceased. The assumption of negligence under res ipsa loquitur does not require evidence to establish negligence as the injury may not have occurred in the absence of negligence. The court therefore finds that the 1st Defendant although trained on how to use the gun was negligent on the day in question leading to the demise of Ali Abdulai. The 1st Defendant therefore negligently caused the death of the deceased. The next issue that falls for determination is whether or not the 2nd Defendant is vicariously liable for the negligent act of the 1st Defendant which resulted in the death of the deceased. Vicarious liability is a way of imposing liability on a person for the torts of a third party. To establish vicarious liability the plaintiff must show that the relationship between the 1st Defendant and the 2nd Defendant is capable of attracting vicarious liability and there is a sufficiently close connection between the relationship and the tort. A classic example of such a relationship is one that exists between an employer and its workers where the employer is held strictly liable for the torts of the worker provided the torts are committed in the course of the worker’s employment. It was held in the case of Attorney General v Dadey [1971] 1 GLR 228 that: The principles which are applied to cases of this type, where it is sought to hold a master or employer vicariously liable for the tort of his servant, are well established. These are clearly stated in Salmond on Torts (14th ed.) at p. 658, para. 194 as follows: Page 9 of 16 A master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment. It is deemed to be so done if it is either (1) a wrongful act authorised by the master, or (2) a wrongful and unauthorised mode of doing some act authorised by the master. It is clear that the master is responsible for acts actually authorised by him: for liability would exist in this case, even if the relation between the parties was merely one of agency and not one of service at all. But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorised, provided they are so connected with acts which he has authorised that they may rightly be regarded as modes — although improper modes — of doing them. The well-established principle as stated in the above case is that ‘an employer who permits his servant or employee to use his vehicle is not vicariously liable for the negligence of the servant or employee unless the vehicle is being used for the employer’s business.’ DW1 testified in paragraphs 3 and 8 of his witness statement as follows: 3. I know the deceased Ali Abdulai and the 1st Defendant Abdul Rahman were both engaged on one-year fixed-term contracts as security workers of the 2nd Defendant. 8. On 11th April 2018, at about 10:40 am the 1st Defendant reported to the 2nd Defendant’s Chief Security that while on normal patrol duties with the unarmed deceased Ali Abdulai, he tripped and fell and his shotgun went off and hit the deceased who was critically injured. DW2 was cross-examined thus: Page 10 of 16 Q41 You say in paragraph 3 of your witness statement that you know the deceased Ali Abdulai and Abdul Rahman the 1st Defendant, is that correct? A41 Yes, My Lady Q43 Do you know the terms of engagement between the 2nd Defendant and the deceased, Ali Abdulai? A43 Yes My Lady Q44 Can you tell this honourable court what the terms were? A44 My Lady they were engaged as security personnel to patrol on the concession of the 2nd Defendant to prevent illegal miners on the 2nd Defendant’s concession. Q63 The gun that killed the deceased, Ali Abdulai belongs to the company, is that correct? A63 Yes My Lady The above testimonies of DW1 and DW2 show that the deceased and 1st Defendant were both engaged as security workers to patrol the concession of the 2nd Defendant. From the above, the court finds that at the time of the incident resulting in the death of the deceased, the 1st Defendant was doing what he was employed to do. That is 1st Defendant was on patrol duty with the deceased doing what they had been employed to do. The 2nd Defendant will therefore be held vicariously liable for the actions of the 1st Defendant resulting in the death of the deceased. This is fortified in section 30 of the Civil Liability Act, 1963 (Act 176) which provides that: ‘The fact that a person causing and a person suffering injury are fellow workmen engaged in a common employment and under a common employer Page 11 of 16 shall not relieve the employer from responsibility of the results of the injury.’ The instant suit is fought under Act 176 as averred in paragraph 1 of the statement of claim. 2nd Defendant is therefore held liable for the acts of the 1st Defendant resulting in the death of Ali Abdulai. This moves us to the next issue of whether or not the Plaintiffs are entitled to their claim. Plaintiffs are claiming GHS500,000.00 as general damages for negligence, GHS300,000.00 as education and maintenance of the deceased’s children, damages for the loss of dependence on the deceased by his four children and two wives, damages for the wrongful and unjust deprivation of the love, care, and affection the deceased would have given to the Plaintiffs as well as his children and costs including lawyer’s fees assessed at 20% of the claim. Section 18 of Act 176 stipulates what damages are recoverable under the Act as follows: 18 (1) (a) the total of such amounts that the Court considers proportionate to the loss resulting from the death to each of the dependants, respectively, for whom or on whose behalf the action is brought, . . . 18 (5) In addition, damages may be awarded in respect of expenses actually incurred by the deceased before the death and in respect of funeral and any other expenses incurred by the dependants or the personal representative by reason of the wrongful act Act 176 provides for both general and special damages under specific heads the latter of which has to be proved strictly. The dependants are each entitled to general damages for loss resulting from the death of the deceased. The court will award damages for the loss to each of the dependants listed in relief ‘d’ namely 2nd and 3rd Plaintiffs who get GHS20,000.00 each and GHS15,000.00 each to the four children of the deceased. No claim Page 12 of 16 was made in respect of the parents of the deceased. Section 16 (5) of Act 176 stipulates that the plaintiff shall furnish the defendant with particulars of the persons for whom and on whose behalf the action is brought and of the nature of the claim in respect of which damages are sought to be recovered. The failure of the Plaintiffs to furnish the Defendants and indeed add the parents of the deceased to the claim endorsed on the writ of summons leaves them out of the court’s consideration for a claim. The requirement to furnish their particulars was in mandatory terms thus the court will assume in the absence of compliance that Plaintiffs did not intend to make any claim for them. In respect of damages actually incurred by the deceased before his death, no evidence was led in respect thereof. It is special damages that ought to be pleaded specifically and proved strictly. For that heading, therefore, the court will not award any damages as the Plaintiffs failed to prove that entitlement under Act 176. Plaintiffs are also entitled to damages as a result of expenses incurred in respect of the funeral of the deceased. In this regard, plaintiffs testified that the 2nd Defendant gave the deceased’s family GHS10,000.00 towards the deceased’s funeral. This was denied and 2nd Defendant contended that it was rather an agreed compensation between it and the deceased's family. In cross- examination of DW2, he testified as follows: Q49 You state in paragraph 12 of your witness statement that when he died you had a meeting on 18th April 2018 and agreed with the deceased family to pay a compensation of GHS10,000.00 to them, is that correct? A49 That is not correct My Lady Q51 So, the GHS10,000.00 that you mentioned in paragraph 12 of your witness statement that you agreed to pay to the family of the deceased, what was it meant for? Page 13 of 16 A51 My Lady it was meant for funeral purposes. 2nd Defendant’s own witness, DW2 having testified that the GHS10,000.00 given to the deceased’s family was meant for funeral purposes for the deceased, the Plaintiffs are not obligated to prove that assertion. The court finds that the GHS10,000.00 given to the deceased’s family was meant for funeral purposes and will so hold. No further award will be made in respect of funeral expenses as the 2nd Defendant has discharged that duty already. The plaintiffs also prayed for costs of children’s education and maintenance from April 2018 to March 2019 assessed in the sum of GHS20,000.00. The plaintiffs did not lead evidence to demonstrate how the amount was arrived at. The evidence shows that following the death of the deceased, the 2nd Defendant continued to pay the salary of the deceased for the upkeep of the dependants. 1st Plaintiff testified in cross-examination as follows: Q16 And you would further agree with me that per your own exhibit ‘B’ the payment started in May 2018 to February 2020 regular payment of what the deceased would have been entitled as salary if he had continued to work for the 2nd Defendant was paid into the account for the use of the deceased’s family. A16 My Lady that is so…. The unchallenged evidence of the DW1 was that the 2nd Defendant made 31 payments equivalent to the deceased’s salary each month for the maintenance of the dependants. It is further gathered from the evidence that the 2nd Defendant ceased the payments when the Plaintiffs demanded GHS800,000.00 as compensation from the 2nd Defendant. The court is satisfied that per the gesture of the 2nd Defendant’s payment of the salary amount of the deceased to his family for the upkeep of the dependants, the 2nd Defendant has paid Page 14 of 16 more than the Plaintiffs are claiming on this head. No further award will be made in this regard. Per the relief ‘c’, the Plaintiffs are claiming for the prospective cost of education and maintenance in the sums above stated for the children of the deceased. Per Q121, it is deduced that one of the children has passed on leaving three children. The court will in the circumstances award GHS20,000.00 each to the remaining three children towards the costs of their education and maintenance. The court makes the following concluding orders: 1. GHS20,000.00 each to the 2nd and 3rd Plaintiffs and GHS15,000.00 each to the deceased’s three children as general damages for loss resulting from the death of the deceased. 2. No award is made in respect of damages actually incurred by the deceased before his death. 3. No award is made in respect of damages as a result of expenses incurred in respect of the funeral of the deceased as the 2nd Defendant gave money for that purpose. 4. No award is made in respect of the costs of the children’s education and maintenance from April 2018 to March 2019. 5. GHS20,000.00 each to the remaining three children towards the costs of their education and maintenance. 6. Costs of GHS15,000.00 awarded in favour of the Plaintiffs and against the 2nd Defendant. Justice Gifty Dekyem (Mrs.) Page 15 of 16 Justice of the High Court Cases cited: Attorney General v Dadey [1971] 1 GLR 228 Ababio v. Akwasi [1994/95] GBR 774 Page 16 of 16