Ackaah v Nwagu (GJ/0902/2022) [2023] GHAHC 691 (23 November 2023)

IN THE HIGH COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE GENERAL JURISDICTION DIVISION “2” HELD IN ACCRA ON MONDAY THE 23RD DAY OF NOVEMBER, 2023 BEFORE HER LORDSHIP JUSTICE FORSON AGYAPONG BAAH, JUSTICE OF THE HIGH COURT SUIT NO: GJ/0902/2022 MAVIS ACKAAH … PLAINTIFF VRS. ANTHONY OHUABUNWA NWAGU … DEFENDANT ============================================================================= JUDGMENT On the 31st of May, 2022, the Plaintiff sued the Defendant for the reliefs endorsed on the writ of summons and statement of claim as follows: (a) Recovery of an amount of GH₵62,167.07 being cost of Hospital and other related bills. (b) A lump sum payment equivalent to 30 years or thereabout loss of future income due to the negligence of the Defendant. (c) A lump sum payment equivalent to the loss of income due the Plaintiff from the date of the accident to date due to the negligence of the Defendant. (d) An amount of money equivalent to lost variable future earnings the Plaintiff would have earned but for the negligence of the Defendant. (e) Lump sum payment for the economic, psychological and physical effect of the accident on her life. (f) (g) Reasonable monthly maintenance her upkeep for the rest of her life. Reasonable monthly payment for medical bills for the rest of her life. Page 1 of 10 (h) Compensation for the economic and emotional strain endured by the Plaintiff’s family as a result of the accident. (i) (j) General damages. Cost inclusive of Counsel fees. (k) Any other reliefs as this Honourable Court may deem fit. The Defendant, upon service of the said Writ of Summons and Statement of Claim, entered appearance on the 15th of August, 2022 by his lawyer, Kofi Burah Asomaning Esq. of Nyahe Law Consult, Accra but failed to file his Statement of Defence. For his failure to file his Statement of Defence, an interlocutory judgment was entered for the Plaintiff on the 18th January, 2023 following which the Plaintiff was ordered to file her witness statement and the suit to take its normal course. The Defendant subsequently filed a motion of notice to set aside the default judgment entered in favour of the Plaintiff but the said motion was dismissed on 20th March, 2023 and that paved way for the Plaintiff to file her witness statement as ordered by the Court. The Plaintiff accordingly filed her witness statement together with documents and Pretrial checklist on 31st March, 2023. The case of the Plaintiff is that she is a Health Care Assistant (nurse). According to the Plaintiff on the 15th of December, 2020, she had closed from work at about 10:00 pm and whilst on her way to her house, she stopped in front of a shop at Aworshi Baah Yard to buy some food items. And whilst she was standing on the pavement reserved as a pedestrian walkway, the Defendant upon reaching a section of the road in front of the pavement failed to drive with due care, skill and attention and as a result lost control of the vehicle, veered off the road and the vehicle climbed onto the pavement where the Plaintiff was standing and in the process knocked Plaintiff over, drove on her left thigh and the vehicle became stationary on her left thigh under excruciating pain for close to four hours before the Defendant’s vehicle was lifted off her. The Plaintiff stated that the Defendant refused to exercise due care at the time of the accident which caused the Plaintiff to sustain severe injuries to her right Page 2 of 10 thigh and her arms and as well led to the removal of the toes on her right foot. The following are the particulars of negligence pleaded by the Plaintiff: (a) The Defendant was negligent in failing to see the Plaintiff for which he did not exercise due care and attention; (b) He failed to make any proper look out; (c) He failed to drive in his lane, as a result of the vehicle veered off it lane and climbed onto the pavement along the road reserved as pedestrian walkway; (d) The Defendant was negligent in failing to blow his horn or otherwise to alert the Plaintiff of his presence on the pavement so that the Plaintiff must take avoiding action; (e) He failed to pay any or sufficient heed to the Plaintiff; (f) He failed to properly apply his brakes, steer, swerve or maneuver his vehicle so as to avoid crushing the Plaintiff; (g) He drove at a speed excessive in the circumstance; (h) He failed to properly or at all investigate and to ensure that the vehicle was road worthy at the time of the accident (did not properly service and maintain his vehicle which examination proved that the brakes fluid reservoir was empty which led to the ineffectiveness on the brakes when it was applied leading to the accident. According to the Plaintiff, when onlookers succeeded in removing her from the beneath of the vehicle, she was rushed to a health facility from where she was referred to the Korle-Bu Teaching Hospital. The Plaintiff stated that she was in coma for five days and that upon examination by doctors at the Korle Teaching Hospital, she was found to have suffered severe injuries. She gave the particulars of injury as follows: (a) (b) (c) (d) (e) Pelvic fracture; Left femur fracture; Open injury of the right foot (all the five toes were completely torn off; Contracture of the right leg; Pain in the left and right legs Page 3 of 10 The Plaintiff stated that she underwent surgeries at the Korle-Bu Teaching Hospital and was on admission at the said facility from 15th December, 2020 to 29th January, 2021. The Plaintiff was, at the date of the filing of the writ on 31st May, 2922, still undergoing outpatient management at Korle Bu and Komfo Anokye Teaching Hospital in Kumasi in Ashanti Region. The Plaintiff averred that the doctors at the Komfo Anokye Teaching Hospital found that one of the screws that was placed during the surgeries at the Korle-Bu Teaching Hospital had removed as a result of which she was scheduled for another correctional surgery at FOCUS Hospital in Accra at the cost of GH₵60,000 for bone graft and open treatment of femoral shaft structure with or without insertion of intramedullary implant with or without cerclage and/or locking screws, which will be her 5th surgery due to the accident. However per the pro forma invoice dated 22nd February, 2022, from FOCUS Orthopedic Hospital tendered in evidence as exhibit 10, the cost of the intended surgery was assessed at GH₵52,080.00. The Plaintiff averred that after the accident, she has been in and out of hospital either as an out-patient or on admission and contended that she is able to ambulate only with assistance of a Zimmer frame. The Plaintiff’s degrees of disability and incapacitation was each assessed at 100%. See exhibit “10”. At the time of the accident, the Plaintiff was 31 years and was earning GH₵1,200.45 per month. The Plaintiff contended that due to the she cannot engage in any meaningful work or activity resulting in untold hardship or herself and her family. She further contended that she has lost the potential of marrying, having sex and raising a family. The Plaintiff told the court that the Defendant was charged with three counts of offences, namely, (1) Careless and Inconsiderate Driving contrary to section 3 of Road Traffic Act, 2004 (Act 683) as Amended by Act 761/2008; (2) Negligently Causing Harm contrary to section 72 of the Criminal Offences Act, 1960 (Act 29) and (3) Driving a motor vehicle in dangerous condition: contrary to section 80 of Road Traffic Act, 2004 (Act 683 as Amended b Act 761/2008 subsequently arraigned before the Page 4 of 10 Sowutuom District Court where he pleaded guilty to the charges and was accordingly convicted. In civil cases, the general rule is that the burden of proof rests upon the party, whether Plaintiff or Defendant, who substantially asserts the affirmative of the issue. Section 14 of the Evidence Decree succinctly supports the allocation of burden of proof in civil cases. It provides as follows: “Except as otherwise provided by law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non-existence of which is essential to the claim or defence he is asserting”. Under section 11[4] of NRCD 323, a party discharges the burden of producing evidence when the party produces “… sufficient evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact was more probable than its nonexistence”. In the case of Faibi v. State Hotels Ltd. [1968] GLR 471, it was held thus; “… Onus in law lay upon the party who would lose if no evidence was led in the case; and where some evidence had been led it lay on the party who would lose if no further evidence was led...”. See also Zabrama v. Segbedzi (1991)2 GLR 221; Ackah v. Pergah Transport (2010) SCGLR 728 @ 736, per Adinyira JSC On the issue of who bears the evidential burden, see the dictum of Gbadegbe JSC in Sagoe v. SSNIT (2011) 30 GMJ 133 where he stated as follows: “The party who asserts has the incidence of the legal burden”. The standard of proof in civil cases is on the balance of probabilities. This is supported by sections 12(1) and 12(2) of the Evidence Decree 1975 [NRCD 323]. Page 5 of 10 (a) Section 12(1) provides that “Except as otherwise provided by law, the burden of persuasion requires a proof by a preponderance of the probabilities. (b) Preponderance of Probabilities is defined in section 12(2) to mean “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. Serwah vs. Kesse (1960) GLR at 228 Following a series of hearing notices and adjournments, the Plaintiff mounted the box and testified for herself on the 22nd of May, 2023. The Plaintiff tendered in evidence her witness statement, which essentially followed the lines of the statement of claim filed during which she tendered in evidence the documents marked as exhibits “MA 1” to “MA 12” as follows: i. ii. iii. iv. v. vi. vii. Exhibit “MA 1” – A copy of Birth Certificate; Exhibit “MA 2” – A copy of Certificate from Kings College; Exhibit “MA 3” series – A copy of each of letter of appointment and promotion letter from the Seventh Day Adventist Health Services; Exhibit “MA 4” – A copy of pay slip; Exhibit “MA 5” series – Copies of employment letter from the Agency in Israel and the Plaintiff’s passport; Exhibit “MA 6” – A copy of Police accident report; Exhibit “MA 7” series – Copies of pictures of the Plaintiff whilst on admission; viii. Exhibit “MA 8” – A copy of medical report from Korle-Bu Hospital dated 12th March, 2021; ix. x. Exhibit “MA 9” series – Copies of receipts from the hospitals; Exhibit “MA 10” – A copy of estimated cost for further surgery from Focus Orthopedic Hospital in Accra; xi. Exhibit “MA 11” – A copy of the records of the proceedings in he criminal matter dated 31st March, 2022; xii. Exhibit “MA 12” series – Copies of receipts from Korle-Bu Teaching Hospital attendance. Page 6 of 10 It must be noted here the Defendant failed to file its defence and witness statement and that of its witnesses, if any, and also failed to attend court to prosecute this case and/or defend itself against the Plaintiff or even to cross examine the Plaintiff and her witness. The Plaintiff was accordingly discharged and case adjourned to 10th July, 2023 for the Plaintiff to call her 1st witness and the court ordered hearing to issue for service on the Defendant which the Plaintiff complied. Characteristic of the Defendant and her lawyer, on the said 10th July, 2023, when the case was called, the Defendant and his lawyer were once again absent following which the Plaintiff’s first witness one Omane Achamfour Okrah, specialist surgeon. The witness told the court that on the 12th of March, 2021, he wrote a medical report for the Plaintiff when she was involved in a motor accident. He tendered the report which the Plaintiff had already tendered as exhibit “8” as exhibit “CE1”. The witness was thereafter discharged. The case was then adjourned for judgment. The Defendant takes the blame for failing to appear in court to prosecute this case and/or defend itself against the Plaintiff. In the case of Republic vrs. High Court (Fasttrack Division), Accra; Ex Parte: State Housing Co. Ltd. (No. 2) (Koranten-Amoako – Interested Party) [2009] SCGLR 185, holding (1), it was held that: “a party who disables himself or herself from being heard in any proceedings cannot later turn round and accuse the adjudicator of having breached the rules of natural justice …”. See also Republic vrs Court of Appeal; Ex parte East Dadekotopon Development Tust, Civil Motion No. J5/39/2015, dated 30th July, 2015 and Baiden vrs Solomon (1963) GLR 488 at page 495. However, notwithstanding the absence of the Defendant, the Plaintiff must still prove its case to be able to win this case. In Tei & Anor. vrs. CEIBA Intercontinental (2017-2018) 2 SCGLR 906 at 919, Pwamang JSC stated as follows: “It must be remembered that the fact that a Defendant does not appear to contest a case does not mean that the Plaintiff would be granted all that he asks for by the Court. The rule in civil cases is that he who alleges must prove on the balance of probabilities and the burden is not lightened by the absence of the Defendant at the trial. The absence of the Defendant Page 7 of 10 will aid the Plaintiff only where he introduces sufficient evidence to establish a prima facie case of entitlement to his claim”. The law is that where a party makes an admission of an adversary’s claim, it absolves that party the burden of proof. Thus in the Supreme Court case of Fynn vrs. Fynn & Osei [2013-2014, 727 @ 738 and holding (2) “… where an adversary had admitted a fact advantageous to the cause of a party, that party would not need any better evidence to establish that fact than by relying on such an admission …”. See also the case of In Re Asere Stool; Nikoi Olai Amontia IV (substituted by) Tafo Amon II v Akotia Oworsika III (substituted by) Laryea Ayiku III [2005-2005] SCGLR 637 from which the above principle was quoted with approval. Again, Order 11 Rule 13 of C. I. 47 provides as follows: “(1) Subject to subrule (4) of this rule, any allegation of fact made by a party in the party’s pleading shall be deemed to be admitted by the opposite party unless it is traversed by that party in pleading or a joinder of issue under rule 14 operates as a denial of it”. In Kusi & Kusi vrs. Bonsu [2010] SCGLR 60 @ 78-79, Wood CJ stated thus” “… It is elementary principle of law that in civil litigation, where no issue was joined as between parties on a specific question, issue or fact, no duty was cast on the party asserting it to lead evidence in proof of that fact or issue. Indeed, most delays associated with civil trials would be avoided, if this simple elementary evidentiary rule were strictly adhered to. On the basis of this time-honoured principle, the appellants i.e. he Defendants, were not even under any obligation to have tendered all of these documents complained of, documents which bore evidence of registration ex facie, let alone be held accountable for non compliance with the procedural requirements of notice under section 27(2) and (3) of Act 122, let alone have their claim thrown out on that basis. In any event, the evidence does not suggest in any remotest sense that these documents fall into any of the stated classifications or even more importantly, that at the time they sought to them, the Respondent, i.e. the Plaintiff raised objections to the non-compliance with the statutory requirements. In Foli vrs. Ayerebi [1966] GLR 627, SC a most direct and helpful authority on the point about undenied averments, the Court held (as stated in holding (6): Page 8 of 10 “When a party had made an averment and that averment was not denied, no issue was joined and no evidence be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross examined upon it, he need not call further evidence of that fact …”. See Order 11 rule 13(2) which also provides that “A traverse may be made either by a denial or by a statement of non-admission and either expressly or by necessary implication”. See also His Lordship, Mr. Justice Osei Hwere sitting in High Court (Commercial Division), Kumasi in BSIC Ghana Limited vrs. Gyamfua Ababio Investment Limited & Anor. 2019, Suit No. BFS/33/2019 dated 18th June, 2019 thus: “In law there are two main types of admission. They are the formal and informal admission. An admission is formal when it is contained in the pleadings of the opponent; thus when the opponent voluntarily accepts the truth or authenticity of the facts averred by the adversary. A formal admission may also occur during cross examination. Informal admissions are presumptive in nature and may include either implied, incidental or adoptive admissions …”. After reading the entire pleadings of the Plaintiff and having listened to the evidence adduced in this matter by the Plaintiff and her witness and having thoroughly examined the exhibits and the record of proceedings, and the Defendant having failed to come to court to raise a prima facie case against the case of the Plaintiff, I am of the considered view that the Plaintiff has on the preponderance of probabilities proved her case. In conclusion, the Plaintiff claim succeeds and I accordingly enter judgment for Plaintiff as follows: (a) Recovery of an amount of GH₵62,167.07 being cost of Hospital and other related bills from the Defendant. Recovery of an amount of GH₵52,080.00 being cost for the proposed surgery at (b) FOCUS Orthopedic Hospital. Page 9 of 10 (c) A lump sum payment GH₵474,153.74 being 29 years of loss of future income due to the negligence of the Defendant inclusive of 13.5% social security from her employers. (d) An amount of money equivalent to lost variable future earnings the Plaintiff would have earned but for the negligence of the Defendant assessed at GH₵47,415.37 being 10% of the total sum of GH₵474,153.74 the Plaintiff would have earned for the 29 years of her remaining useful working life. (e) (f) General damages for pain and suffering, psychological and physical traumatic effect of the accident on her life assessed at GH₵200,000.00 General damages for negligence assessed at GH₵10,000.00 And for costs, I award the Plaintiff the sum of GH₵50,000.00 inclusive of legal fees H/L FORSON AGYAPONG BAAH (J) (JUSTICE OF THE HIGH COURT) LAWYERS: RITA AMONOO-MENSAH FOR APPLICANT PRESENT KOFI BURAH ASOMANING FOR RESPONDENT ABSENT Page 10 of 10