Komakurugu v Acheampong and Another (BMISC 447/2010) [2023] GHAHC 692 (7 December 2023)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE, GENERAL JURISDICTION 2, ACCRA, HELD ON THURSDAY 7TH DAY OF DECEMBER 2023, BEFORE HIS LORDSHIP, JUSTICE FORSON AGYAPONG BAAH. ========================================================================== SUIT NO: BMISC 447/2010 DAVID DONAB KOMAKURUGU V 1. ACHEAMPONG SIMON KOFI 2. SCANCOM LTD ======================================================================= PARTIES: PLAINTIF - - PRESENT DEFENDANT - ABSENT. COUNSEL: RAPHEL B. K. ABOAGYE FOR PLAINTIFF PRESENT. JOEL ANNOR-AFARI FOR DEFENDANTS ABSENT. JUDGEMENT: By a second amended writ of summons dated 23/11/16 the Plaintiff seek the following reliefs from the defendants jointly and severally: a) The payment of the replacement value of Plaintiff’s Mercedes Benz bus commercial vehicle number ER 245-T which was damaged beyond economic repair as a result of the negligent driving of vehicle number GT 3007-4 by the first defendant as agent and/or servant of the second Defendant on the Konongo- Odumase motor road on or about the fourth day of November 2009. b) Special damages of GHC850.00 being amount spent on various contingencies from the time of the accident to the time of discharge of accident victims from hospital. c) Interest on the judgement date from 4th November 2009 to the date of payment at the current bank rate. On 25/11/2020 the Defendants filed amended statement of defence to the Plaintiff’s writ and on 12/01/2021 the Plaintiff filed a reply to the defendants amended statement of defence. PLAINTIFF’S CASE: According to Plaintiff per his amended statement of claim of 23/11/16, he is a transport owner and an owner of Mercedes Benz bus with registration number ER 245-T. Plaintiff said that on or about 4/11/2009 his bus with registration number ER 245-T with passengers on board from Kumasi to Akosombo and was being driven by his driver by name Kwame Appau and was being accompanied by his mate. According to Plaintiff on the way, at about 4:30pm between Konongo-Odumase on the Accra- Kumasi highway, a Peugeot van driven by the 1st Defendant with number GT 3007-Y, driving from Accra-Kumasi negligently drove into and collided with the Plaintiff’s vehicle. According to Plaintiff the accident was caused solely through the negligent driving of the first defendant. Plaintiff particularized the said negligence as follows: a) Driving at a speed which was excessive at the time of the accident. b) Trying to overtake a vehicle ahead of him when it was dangerous and not safe to do so. c) Leaving his lane of traffic in an attempt to overtake and thereby drove into the lane of traffic of the plaintiff’s vehicle and colliding with it. d) Failing to control and/or manage the vehicle so as to avoid the accident or any at all. e) In the alternative the Plaintiff will rely on the doctrine of “RES IPSA LIQUITUR” to establish the negligence of the first Defendant. Plaintiff averred that the second defendant as owner of vehicle number GT 3007-Y is vicariously liable for the negligence of the first defendant and added that as a result of the accident serious damage was caused to his vehicle making it economically unwise to repair the vehicle. According to the plaintiff, he incurred some damages as a result of the accident which he specifically particularized as the following: a) Cost of hiring taxi to convey accident victims to Konongo Hospital ----GHC100.00 b) Cost of towing vehicle to police station ---------GHC150.00 c) Cost of examining(testing) vehicle number ER 245-T----- GHC100.00 d) Cost of conveying victims to their destinations after treatment---- GHC 100.00 e) Travel and transport---- GHC400.00 TOTAL: GHC850.00 According to Plaintiff his vehicle, a commercial one, transports 17 passengers from Akosombo to Kumasi and makes two trips daily and makes on the average of GHC250 a day. He said even though the pre accident value of the vehicle was determined as 4,200.00 in the year 2010, the value of a Mercedes Benz 3080 bus (home used) now is well over GHC 50,000.00. Plaintiff said he is claiming from the Defendants jointly and severally the reliefs stated above. Plaintiff tendered in evidence the following documents; (1) Exhibit A – STC motor engineers report. The defendants case, per their joint amended statement of defence admitted paragraph two and three of Plaintiff’s statement of claim but said it was not in a position to deny or admit paragraph 1 of the statement of claim. Defendants denied paragraph 4,5,6 and 7 and further denied all the particulars listed therein at paragraph 7. Defendant further denied paragraph 8,9,10,11,12 and 13 of the statement of the statement of claim. The Defendants in further answer to paragraph 7 of the Plaintiff’s statement of claim asserted that the vehicle in question was never manufactured for human transportation but a light cargo vehicle and thus not used for the purpose for which it was manufactured. Defendants concluded their defence by stating that in answer to paragraph 9,10 and 11 and the statement of claim, it maintains that the said accident, the damage to the vehicle and injuries suffered by the persons aboard was because of the retrofitting of the vehicle by the Plaintiff and said the Plaintiff was not entitled to his claim and or at all. The Defendants did not tender any document in evidence and called no witnesses. At the close of the pleadings the following issues were set down for determination by the court, differently constituted. I. Whether the Plaintiff is a transport owner and registered owner of the Mercedes Benz bus number ER 245-T. II. Whether the accident was caused through the negligent driving of the first Defendant. III. Whether the second defendant is vicariously liable for the negligence of the first Defendant. IV. Whether the Plaintiff incurred damages as a result of the accident. V. Any other issue arising from the pleadings. In his evidence in chief on 01/11/16, the Plaintiff said he lives at Akosombo and a car owner and owner of Mercedes car number ER 245-T. He said he knows the 1st Defendant as he met him when the accident occurred at Konongo. According to him, he met Scancom at Konongo. He said on 04/11/2009 he was at Akosombo at 4:30pm when his car mate called and told him they were involved in an accident at Konongo, he could not go to Konongo immediately because of the distance so the following, day his brother by name Baaba Thompson and himself(Plaintiff) went to the hospital where the injured persons were sent and also went to the accident scene. Plaintiff’s first witness was Kwame Appau a driver living at Pankrono-Kumasi . He knows the plaintiff who was his car owner for seven years but has ceased to be his driver. The car he was driving for the plaintiff was a Mercedes Benz passenger car. According to the witness, he was driving the said car from Kumasi to Akosombo and when he reached a curve at Konongo, a Peugeot van which did an overtaking of two cars hit the car he was driving in his (witness) lane. The car that hit his car was coming from accra to Kumasi. According to Plaintiff’s first witness, the nature of the road where the accident took place is such that is a 3-lane and hilly so a car that cannot climb that hill uses the two-lane and those from Kumasi uses the one-lane road but when one gets to where the curve is, the outer lane will join the lane leading to Kumasi to become two instead of three lanes. He said the accident happened at where the outer lane joins the two lane leading to Kumasi. Plaintiff first witness said after the impact happened, the cars were in the middle of the road, his door opened and he fell from the car and because that place was a curve, the other vehicles were not able to use the road so they alighted from their vehicles and took them to the Konongo hospital. Plaintiff’s first witness said it was an MTN car that hit his car but did not get to know who was driving the car owned by MTN that is, 2nd Defendant herein. Plaintiff’s first witness said he reported the case to the police after he was discharged from the hospital and they were taken to the accident scene for the measurements taken by the police. He said his car owner was at Akosombo so he called and informed him about the accident and he (Plaintiff) did the subsequent follow ups. Plaintiff’s first witness said the car was for commercial purposes and in a day he loads from Kumasi to Akosombo and loads back to Kumasi again. He said the bus sitting capacity was 18 but it was not full that day. He could not tell how much each passenger paid as a fee for the trip. Plaintiff’s second witness was chief inspector George Ayensa, of Adentan Police station, Accra and who in the year 2009 was stationed at Konongo Police station. He said on 4/11/2009 at about 4:30pm he was on duty at Konongo police station as investigator. On that day he said there was an accident involving a Benz bus with number ER 245-T and a Peugeot van with number GT 3007-Y at Konongo-Odumase. According to Plaintiff’s second witness, he immediately went to the scene of the accident and met these two vehicles at their resultant positions in the lane of Mercedes Benz number ER 245-T which was coming from Kumasi heading towards Nkawkaw whiles the Peugeot was from Accra direction towards Kumasi. Plaintiff’s second witness said at the scene he met both vehicles in the lane of the Benz bus. He said there are three lanes at that place, those climbing use two lanes and those descending have one lane, so those descending from Kumasi direction towards Nkawkaw have one lane so the Plaintiffs vehicle was met in the lane of those coming from Kumasi heading towards Nkawkaw. Plaintiff’s second witness said measurements were taken by police in the presence of both drivers, they went back to the office, took investigation caution statement from both drivers and both were released on police inquiry bail to be reporting. Plaintiff’s second witness said the investigations ended but the docket was closed as accidental based on the DVLA report. He said the driver was not prosecuted because from the DVLA report the accident had arisen due to the Peugeot van whose brake hose got busted because of emergency braking. A police report was issued on the accident of the two cars ER245-T and GT 3007-Y and he tendered same in evidence without objection and was marked as Exhibit B. He said the Peugeot van was examined in his presence at the premises of Konongo DVLA on 12/11/2009. He read in open court the police report in Exhibit B. Plaintiff at this stage brought its case to an end. In his defense the 1st Defendant Simon Kofi Acheampong, said he works with the 2nd Defendant as a driver. According to him on November 2009, he was sent by the second defendant to undertake a job at Kumasi and was driving car number GT 3007-Y on his way from Accra, after Konongo as he was exiting the Odumase township he descended the valley and was climbing the hill where there is 3-lane road, two-lane from Accra to Kumasi and one lane from Kumasi to Accra. According to the 1st Defendant he was in the middle lane which is for small cars heading to Kumasi and just about reaching the apex of the hill he saw a vehicle coming from Kumasi towards Accra. The said vehicle was descending the hill and before he could realize it veered into his lane and collided with his vehicle. He said the collision took place in the middle lane where he(Defendant) was driving and got trapped in his vehicle as a result of the impact. First defendant said he became unconscious and gained consciousness at the Konongo hospital. The vehicle his car collided with was a Mercedes Benz bus and denied Plaintiff’s claim that it was due to his fault that the accident occurred, and that he was driving in his lane when the plaintiff veered into his lane. According to first Defendant he later went to the police station to report the accident, his statement was later taken and said he was told the other driver involved in the accident had gone to the police station and without him(Defendant), Plaintiff’s first witness and the Police had gone to take measurements at the accident scene. He said he was not part of the preparation of Exhibit B and although he agreed it was an accident he said it was rather Plaintiff who veered into his lane and caused the accident. He said Exhibit A shows Plaintiff’s first witness’ car tire was worn out and also not meant for conveying passengers. The Defendants did not call any witness and so brought their case to an end after 1st Defendant’s evidence-in-chief. In the celebrated case of Donoghue v Stephenson (1932) AC 562, 619, Lord Macmillion said of the requirements of negligence: “The cardinal principle of liability is that the party complained of should owe to the party complaining a duty of care and that the party complaining should be able to prove that he has suffered damage in consequence of breach of that duty.” In Lochselly Iron and Coal Company limited v M’mullan(1934) AC 1 @ Page 25 it was stated that “In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission; it property connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing___” The principle has been applied domestically in cases including Alhasan Kotokoli v Moro Hausa and Anor (1967) GLR 298 and Ghana Highway Authority v Mensah(1999-2000) 2 GLR 237. In respect of road users, the supreme court in the case of Owusu v Community Of Police(1963) GLR 113 said “It is the duty of all road users at all times to keep a look out so as to avoid collision with other road users.” A master was not liable for his servant’s tort unless it fell within the course of the servant’s employment. A master was only liable when the servant was acting in the course of his employment. See Ewudziwa v AG (1982-82) GLR 625 and also Yortuhor v Brako and Anor(1989-90) 2 GLR 429. And in AG v Dadey (1971) GLR 228 it was held that “an employer who permits his servant to use his vehicle will not be vicariously liable for the negligence of the servant unless the vehicle was being used for the employer’s business. The question of whether or not an unauthorized act by a servant is within the scope of his employment is one of fact. Where a plaintiff in an action for negligence proved that damage had been caused by the Defendant’s motor car, the fact of ownership of the motor car was prima facie evidence that the motor car, at the material time, was being driven by the owner or its agent or servant in the course of his employment. Where a Plaintiff in an action for negligence proves that damage has been caused by the Defendant’s motor-car, the fact of ownership of the motor-car is prima facie evidence that the motor-car, at the material time was being driven by the owner or his servant or agent. See Kobina and Anor v Badu (1968) GLR 1150 and Aboaku v Tetteh and Anor (1962) 2 GLR 165. “The term burden of proof encompasses two concepts. Firstly, it means the duty of a party on whom the duty lies, to adduce sufficient evidence in support of an averment or assertion made by that party. Secondly, it means the duty to put forward, sufficient evidence to counter a prima facie case that that has been established against him in order to avoid a ruling made against him on that issue. See Yorkwa v Duah (1992-93) GBR 278, where Brobbey JA (as he then was) elucidated the provisions of sections 10,11,12,13 and 14 of the evidence Act. Among other authorities that have explained the rules on burden and standard of proof are T. K Serbeh Company Limited v Mensah (2005-2006) SCGLR 341; Owusu v Tabiri and Anor(1987-1988) GLR 287; Baah Ltd v Saleh Bros(1971) GLR 110. Needless to say that the Onus is upon the Plaintiff to prove negligence he relies upon and if he fails to prove same his claim must fail. “The 1st issue for determination is whether the Plaintiff is a transport owner and registered owner of the Mercedes Benz bus with registration number ER 245-T. The plaintiff in his evidence in chief said that he is a car owner and the owner of Mercedes Benz with registration number ER 245-T. During cross examitationn the plaintiff was not cross examined on this piece of evidence that he is or was the owner of car with registration number ER 245-T. This transpired: Q. Please what is the registration number of your vehicle? A. ER 245-T Q. And it is your case that it is a Mercedes Benz 207 model. A. It is a 207 Benz bus. Q. So it is not a Mercedes Benz but 308D model. A. My Lord what I know is that it is a Mercedes Benz 207 bus. Q. And for how long have you been in the transport business? A. My Lord I think it is about 15 years now. From the above, as already said, the Defendant did not deny that the Plaintiff was a car owner and owner of vehicle with registration number ER 245-T. In Daniella construction Limited v Mabey and Johnson Limited (2007-2008) SCGLR 60, it was held inter alia “The Plaintiff company did not cross-examine the witness of the Defendant company in the witness box when he gave that evidence; the Plaintiff company did not also tender any evidence to challenge the veracity of the evidence in exhibit 2 and inference was that it admitted the import of the evidence.” See also Fori v Ayirebi (1966) GLR 627. In the instant case Plaintiff’s evidence that Mercedes Benz bus with registration number ER 245-T was not challenged during cross examination and the inference is that the defendants admit same. Plaintiff’s first witness, the driver in charge of Mercedes Benz car with registration number ER 245-T also in his evidence referred to the Plaintiff as his car owner, but this evidence was never challenged during cross examination. Finally, Plaintiff’s second witness, George Ayensah, the police officer in charge of the case, then tendered in evidence Exhibit B, the Police report on the accident dated 2/11/2010 and the particulars of ownership of car with number ER 245-T which was mistakenly typed as AS 245-T, as David Donab Kumuakurugu. From the foregoing I have found as a fact that at the time of the accident, car number ER 245-T was owned by the Plaintiff. The next issue is whether the accident was caused through the negligent driving of the 1st defendant. In Ghana Highway Authority v Mensah (1999-2000) 2 GLR 237, it was held that 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 recognizable damage to plaintiff. The plaintiff called the Plaintiff’s first witness, Kwame Appau the driver in charge of Plaintiff’s vehicle when the accident occurred. He said he was driving the Plaintiff’s car from Kumasi to Akosombo on the said day and when he reached a curve at Konongo, a Peugeot van which did an overtaking of two cars hit his car in his lane. From the record the first Defendant was coming from Accra towards Kumasi. The plaintiff’s vehicle was coming from Kumasi towards Nkawkaw and was driving in his lane that is the outer when coming from Kumasi to Nkawkaw direction. At where the accident happened, on the left of the vehicles coming from Kumasi is a two-lane road, one for vehicles which are slow and coming from Accra. The 1st Defendant driving his car from Accra towards Kumasi, on reaching a section of the three lane road, he had wanted to by-pass a vehicle in the middle lane and as a result collided with an on-coming Mercedes Benz bus number ER 245-T with passengers on board. Plaintiff’s first witness’ evidence that the accident occurred in his lane was not discredited nor shaken when he was cross-examined. This transpired: Q. The point of impact occurred in the middle of the road is that not so? A. In the middle of the curve. Q. So I am putting it to you that it is not the case that you were in your lane as you want this court to believe. A. I was in my lane. Plaintiff’s second witness is his evidence as reproduced above said when he got to the accident scene immediately after same had happened he met the two vehicles at their resultant positions in the lane of Plaintiff’s first witness’ car that is ER 245-T which was coming from Kumasi towards Nkawkaw. This evidence corroborates Plaintiff’s first witness’ evidence that the accident happened in the lane of car number ER 245-T. When he was cross examination he maintained his stand. These transpired: Q. Can you tell the position of the vehicles at the time you arrived at the accident scene. A. At the time I arrived at the scene, both vehicles were met in the lane of vehicle number ER 245-T. Q. I am putting it to you that the point of impact was in the middle lane of the three-lane road. A. My Lord this is not true, the impact was on the left when facing Kumasi direction. Q. I am putting it to you that the said accident was never as a result of the negligence of the 1st Defendant. A. That is not true. Plaintiff’s second witness also tendered in evidence without objection, Exhibit B, the police accident report involving the two cars dated on 02/11/2010. The report gave the brief facts about the accidents as follows: “on 14/11/2009 about 4:30pm suspect driver Acheampong Simon Kofi was driving Peugeot van number GT 3007-Y from Accra to Kumasi. On reaching a section of the road at Konongo-Odumase Three lane, he had wanted to bypass a vehicle in the middle lane and as a result collided with an on-coming Mercedes Benz number AS 245-T with passengers on board. Some of the passengers sustained injuries and were rushed to Konongo- Odumasi hospital for treatment. Both vehicles were damaged.” Foundation was laid to the effect that the car number plaintiff’s witness was driving was ER 245-T and not AS 245-T, hence police report was tendered without any objection. The Police Accident Report was signed by me ASP Augustine K. Mensah of the MTTU, Konongo and copied to the Regional crime, Ashanti Region. What is in the report as regards the cause of the accident is not different from what the Plaintiff’s second witness said in his evidence in chief, it corroborates same. A police accident report issued after investigating an accident provides evidence of whether one was negligent or not in the cause of the accident. The facts contained in the reports are to be taken into consideration in determining who was negligent in the causation of the accident. It is the more probable of the accounts given by the two sides as the cause of the accident. See Saoud Brothers and Anor v Boateng (1964) GLR 405. The Supreme court in the Saoud case supra also held as follows: “The trial judge failed to direct his attention to the official Police Report on the accident tendered in as evidence, and its relevancy to the issues he had to try.” The cardinal fact is that overtaking is allowed by the law on roads in Ghana. However, it is a duty of all road users at all times to keep a lookout so as to avoid collision with other road users. See Owusu v Commissioner of Police (1963) GLR 113. The first Defendant in his defence claimed on his way from Accra to Kumasi and after Konongo as he was exiting the Odumase township he descended the valley and was climbing the hill where there is a 3-lane road, he was in the middle lane heading to Kumasi and just about reaching the apex of the hill he saw a vehicle coming from Kumasi towards Accra. The said vehicle was descending the hill and before he could realize it veered into his lane and collided with his vehicle. First the first Defendant’s evidence on the collision was not corroborated. Secondly I have directed my attention to the contents of Exhibit B and its relevance to the issue at stake. I find that the 1st Defendant’s evidence on how the collision came about its inconsistent with what is contained in Exhibit B. What is contained in Exhibit B is more probable of the accounts given by the two sides as to the cause of the accident. See Saoud v Boateng (Supra). Exhibit B attributed the accident to brake failure. The report said; “Examination conducted on the vehicle (GT 3007-Y) revealed that the brake hose burst during a hard emergency brake action, Since the vehicle was in motion brake failure would be experienced and would be difficult to bring the vehicle on instant stop hence the accident.” The first Defendant denied there was a brake failure but as I have indicated above the contents of Exhibition B is more probable of the accounts of the two sides of what caused the accident. The mere denial by the first Defendant without more cannot be accepted. The sudden application of brake leading to the bursting of the brake hose, is clear indication the 1st Defendant was speeding. Where a road user defaults on his duty of care, resulting in an accident, he becomes liable both criminally and under civil law. 1st Defendant, I have found from the foregoing owed a duty of care to the Plaintiff’s first witness and his passengers on that faithful day. He breached this duty by failing to be on a proper look-out so as to observe whether there was an on-coming vehicle; having breached the duty he owed to Plaintiff’s first witness and the passengers in the Plaintiff’s first witness’ car, resulting in injuries to the Plaintiff’s first witness and the passengers, I hold that 1st Defendant was negligent and thereby liable to the claims of the Plaintiff. One of the worst incidences of negligence in road traffic offences is driving without a license. The Supreme Court had cause to discuss negligence in relation to road traffic offences in the case of Kwadwo Appiah v Kwabena Anane (2020) Civil Appeal Suit Number J4/42/2019 (20/01/20). The court held as follows: “The Laws forbid an owner or a person who has control or custody of a vehicle from permitting an unlicensed driver to drive a vehicle on the road. The relevant provisions are Section 94 and 112 of Act 683, Section 112 provides: (1) A person shall not drive a commercial vehicle unless the person obtains in respect of that vehicle the relevant license issued by the licensing Authority. (2) A license issued under this section shall be valid for the period specified in the license and may be renewed upon application. From Exhibit B, the particulars of Driver’s License in respect of the first Defendant’s car are as follows: temporary drivers license number NK 09623 issued on 17/11/09. The accident occurred on 4/11/09. The license was issued two weeks after the accident implying that at the time of the accident the 1st Defendant was not licensed and therefore not permitted to drive. The next issue is whether the 2nd Defendant is vicariously liable for the negligence of 1st Defendant. The Black’s Law Dictionary (9th Edition) at page 998 defines “vicarious liability” as “Liability that a supervisory party (such as an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties.” The Plaintiff in paragraph 8 of his amended statement of claim filed on 23/11/16 pleaded as follows: “The Plaintiff says the 2nd defendant as owner of the vehicle number GT 3007-Y is vicariously liable for the negligence of the 1st Defendant.” In paragraph 3 of same amended statement of claim Plaintiff pleaded as follows: “That the 2nd Defendant was the owner of Peugeot van number GT 3007-Y.” This averment was admitted in paragraph 2 of the Defendants amended statement of defence. On 21/2/2019 the 1st defendant, in his evidence in chief said the following: “My name is Simon Kofi Acheampong. I live at Kasoa Newtown. I work with the 2nd Defendant as a driver. On 11/2009, I was sent by the 2nd Defendant to undertake a job at Kumasi.” In Agogro v Ago and Anor (1973) GLR 45, it was held as follows: “The test whether a servant is acting in the course of his employment and within the scope of his authority is whether the act of the servant is so connected with his duly authorized acts that they may be considered as modes, although improper modes, of doing them in contradistinction to independent unrelated conduct”. In the instant case the 1st Defendant admitted that he was an employee/servant of the 2nd defendant at the time of the accident. The 2nd Defendant failed to show that the 1st Defendant side-stepped the authority conferred on him or deviated materially from the course of his employment. I have therefore found as a fact that the 2nd Defendant is the owner of the vehicle responsible for the accident through its servant and/or agent, 1st Defendant and therefore 2nd Defendant is vicariously liable for the negligence of the 1st Defendant. The next issue is whether the Plaintiff incurred special damages as a result of the accident. The Plaintiff in paragraph 11 of his amended statement of claim particularized his special damages, and led evidence on same. The Defendants however in their statement of defense (amended) denied the Plaintiff’s paragraph 11. The evidence led by the Plaintiff was only a repetition of what was pleaded at paragraph 11 of his amended statement of claim, which does not constitute proof. See T. K Serbeh and Company Limited v Mensah (2005-2—6) SCGLR 341. The law is clear that special damages must be pleaded and strictly proved. In Delmas Agency Ghana Limited v Food Distributors International Limited (2007- 2008) 2 SCGLR 748, the court held as follows: “General damages is such as the law would presume to be natural or probable consequence of the Defendant’s act. It raises by inference of the law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right. The catch is that only nominal damages are awarded. Where the Plaintiff has suffered a property quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless general damages are also appropriate.” In the instant case, the Plaintiff could not strictly prove his special damages, in the circumstance he is not entitled to same. The Plaintiff at paragraph 9 and 10 of his amended statement of claim however pleaded that his vehicle was damaged beyond economic repairs and led evidence on same. The Defendants denied this averment in their paragraph 5 and 6. The Plaintiff tendered in evidence without objection Exhibit A, a valuation report from the Intercity STC Coaches Limited dated 09/06/2010. This report stated that the Plaintiff’s vehicle ER 245-T was reduced to scrap and beyond repairs and gave the pre-accident value of the car as at June 2010 as GHC 4,200.00. Exhibit A corroborated the Plaintiff’s evidence that his vehicle was damaged beyond repairs. As I have stated above the Defendants denied that the Plaintiffs vehicle was damaged beyond repairs and that was all. No further evidence was produced to support their claim. I therefore find and hold that the Plaintiff’s car was reduced to scrap and damaged beyond repairs as a result of the accident. In the case of Borketey v Achinivu and others (1966) GLR 92 the Supreme court held as follows: “That where in an accident involving a motor vehicle and the vehicle got damaged beyond repairs, economically, the owner of the damaged vehicle is by law entitled to the replacement of the damaged vehicle. The appellant was entitled not only to the market value of the taxi cab at the date of the accident but also profits he could have made had the car remained on the road.” In this same case the Supreme court refers to a quote from CHARLES WORTH ON NEGLIGENCE (4th Edition) Page 532, where the author wrote, “where a chattel is completely destroyed or so damaged as not to be worth repairing, the measure of the damages is the value of the chattel together with any consequential loss following on the destruction of the chattel.” The court in the case above further said that “by the above principle, where the chattel is a private car which is permanently lost to its owner, the consequential loss will be the cost of hiring alternative transport until the procurement of a new car and where the car is a taxi, the consequential loss will be the loss of earnings until such time that another taxi can reasonably be obtained. See also West African Bakery v Meizah (1972) GLR 78. At paragraph 12 of his amended statement of claim, Plaintiff pleaded as follows: “The Plaintiff says his vehicle is a commercial vehicle that transports 17 passengers from Akosombo to Kumasi and makes 2 trips daily and makes on the average GHC250.00 per day.” The Defendants in their paragraph 6 denied Plaintiff’s paragraph 12 and said will put the Plaintiff to strict proof of same. Throughout his evidence the Plaintiff failed to lead further evidence on his averment as contained in paragraph 12 of his amended statement of claim filed on 23/11/16. Once the Defendants denied his averment as contained in paragraph 12, the onus was on the plaintiff to lead further evidence to substantiate that allegation. This the Plaintiff failed to do. It is a basic principle of law on evidence that a party who bears the burden of proof to produce the required evidence of facts in issue that has the quality of credibility short of which his claim may fail. See Ackah v Pergah Transport Limited and others (2010) SCGLR 728. In the Instant case the Plaintiff failed to produce the required evidence of the fact in issue to substantiate the averment that his vehicle transports 17 passengers from Akosombo to Kumasi and makes two trips daily and makes on average of GHC 250.00 per day. Plaintiff is therefore not entitled to any loss of use as he claims. Although the Defendants pleaded at paragraph 6(a) and 6(b) as follows: 6 (a) “The defendants in further answer to paragraph 7 of the Plaintiff’s statement of claim asserts that the vehicle in question was never manufactured for human transportation but light cargo vehicle and thus not used for the purpose for which it was manufactured and 6(b) “the Defendants in further answer to paragraph 9,10 and 11 maintain that the said accident, the damage to the vehicle and injuries suffered by persons aboard was because of the retrofitting of the vehicle by Plaintiff”, the Defendants failed to lead a shred of evidence to substantiate those averments. From the totality of the evidence proffered and on preponderance of probabilities I find that Plaintiff has been able to prove part of his case and is entitled to relief: (a) Payment of replacement value (current market price) of Plaintiff’s Mercedes Benze (207) bus (home use). (b) From the evidence adduced I find the Plaintiff is entitled to general damages ……. In Delmas Agency Ghana Limited v Food Distribution International Limited (2007-2008) 2 SCGLR, the Supreme Court held inter alia as follows; “special damages is distinct from general damages. General damages is such as the law will presume to be the natural or probable consequence of the defendants act. It arises by inference of the law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right”. The accident occurred on 04/11/2009. Plaintiff’s car was a 207 Mercedes Benz bus, a commercial car. This passenger vehicle has been off the road as a result of the 1st Defendant’s negligence up to date of this judgement. I therefore award general damages of GHC 100,000.00 (c) Due to the length of the case, the court awards against the Defendants, cost of GHC 80,000.00 in favour of the Plaintiff. (SGD.) H/L. FORSON AGYAPONG BAAH JUSTICE OF THE HIGH COURT 21