Piggott Vrs Electricity Company Of Ghana Limited [2023] GHAHC 204 (6 February 2023)

IN THE SUPERIOR COURT OF JUDICATURE IN THE HIGH COURT OF JUSTICE HO – VOLTA REGION A. D. 2023 CORAM: CHARITY A. ASEM (MRS.) J. SUIT NO. E2/07/2018 DATE: 6TH FEBRUARY, 2023 PLAINTIFF MATILDA PIGGOTT (MRS.) H/No. 1, Alaye Street Mawuli Estate, Ho VS. ELECTRICITY COMPANY OF GHANA LIMITED Electro Volta House Accra DEFENDANT JUDGMENT The Plaintiff sued the Defendant, Electricity Company of Ghana Limited for the following relief endorse, filed on the 26/7/2017; i. General and special damages for negligence. ii. Further or other relief the Honourable Court may deem fit. Her story has it that, on the 21st day of June, 2015 during the off period of the load shedding exercise, some workers of the Defendant Company (ECG) Ho came to her area of residence to reconnect a transformer serving their customers who were without power. According to her, whilst reconnecting power, there were several power outages which resulted in a very high-power surges whenever the power is turned on, as a result of which part of her house particularly her kitchen, storeroom and living room were guttered with fire and several items were destroyed. She estimated the total value of items destroyed at GH¢33,398.00 and $7,935.00. According to her, she applied to the Ghana National Fire Service (GNFS), Ho and a report on the fire was issued on 7th January, 2016. She immediately submitted the report to the Defendant Company (ECG). She continued that, though she was not at home when the incident occurred, she made sure before she left home all electrical appliances were turned off. The only electrical appliance that was on was her fridge. That the fridge was on because her area had light that day. She avers that her house was fitted with the best electrical cables. According to her all electrical materials used for the wiring of the house including switches and sockets were imported directly from the United Kingdom. That all installations were carried out in accordance with British standards under the supervision of her husband – Dudly J. Piggot who is a qualified Electrical Engineer. It is her story further that, her husband was working with the Defendant on various projects in Ghana. That a protective device manufactured by a renowned MK Electrical of the United Kingdom was installed in the distribution board. Therefore, the damage caused to her property was largely due to the negligence of the Defendant’s workmen who did not take effective measures whether by inspection, examination or otherwise to ensure that there would be no risk of fire to other households arising from the restoration of power to the transformer whilst they were directly in the helm of affairs working on the transformer to restore power to other houses whose supply of power was cut off when they were supposed to have power with the Plaintiff at the time. She concluded that the defendant is liable to her on her claims before the court. On the 3rd October, 2017, the Defendant filed a defence and flatly denied the case and claims of the Plaintiff. They contend that, within the time frame referred to by the Plaintiff, specifically 21/06/2015, there was no fault on Defendant’s transformer which serves the Plaintiff’s area, which require repairs. According to Defendant, there was no repair done on the said transformer on the date and time in question per their records. They contended that the fire incident was brought to their notice by the plaintiff per her exhibit “A Defendant admit that Ghana National Fire Service (GNFS) had conducted an investigation into the cause of the fire. However, that due to the long delay in the report being submitted to it, it could not carry out any independent investigation. It further denied the fact that, the reference to electrical fault in the fire service report could not and did not mean that the operations of the Defendant caused any spark or created the fault but rather that the loose contact that the faulty electrical socket outlet had with the plug could have sparked the fire which eventually burnt part of the house in question. In a reply, Counsel for Plaintiff insists that the cause of fire that destroyed Plaintiff’s property was as a result of negligence on the part of the Defendant. Particulars of negligence 1. Failing to take all reasonable and effective measures whether by inspection examination or otherwise to ensure that there or would not be no risk of fire arising from the restoration of power to the transformer. 2. Plaintiff will rely upon the doctrine of res ipsa loquitor. At close of pleadings, the following issues were set down for determination by the Court: i. Whether or not the Defendant’s workmen were at the transformer on Sunday 21st June 2015. ii. Whether or not the Defendant’s workmen attempted to connect power to other households. iii. Whether or not there were several power outages during the time the Defendant’s workmen were at the transformer trying to reconnect power supply to other households. iv. Whether or not the fire that guttered the Plaintiff’s house was due to over voltage from outside which resulted in the overheated sockets where the fridge was plugged. v. Whether or not the fire outbreak was due to faulty electrical socket outlet. vi. Whether or not the Plaintiff’s fridge was connected directly to the wall socket or electrical socket outlet. vii. Any other issued arising out of the pleadings but not specifically pleaded. After hearing both parties and their witnesses, the Court directed filing of written addresses. Plaintiff’s Counsel submitted same on 25/11/2022 likewise Counsel for Defendant filed his on the 15/12/2022. The varied views and legal arguments shall be referred to in this judgment. The Plaintiff testified per her witness statement filed on 11/12/2019, attached thereof was Exhibit A (Report On an Outbreak of Fire Involving Three (3) Bedroom Self-Contain Building, House No. 1 At Mawuli Estate Alaye Street On Sunday 21/06/2015) a report issued by the Ghana National Fire Service dated 7th January 2016. She relied on one witness Albert Ampofo; who submitted witness statement on 11/12/2019 with no exhibits attached but appeared to testify. The Defendant Company sought leave of the Court to file a late witness statement to replace an earlier one filed by a staff who had left its employment. The Defendant finally testified through one Mawunyo Kudzo Akwetey, an engineer by profession who works with the Defendant. Now, from the pleadings, witness statements the exhibits and cross examination from both sides, it is an established fact that a fire incident occurred at Plaintiff’s home, but the cause is in doubt. The Court at this stage is to analyse from the evidence before it to determine the cause of the fire outbreak leading to the claims of the Plaintiff before the Court. I proceed therefore to discuss the issues raised by Counsel for Plaintiff, as no additional issues were filed. The court considered that the 1st, 2nd and 3rd issues can be tackled together.  Whether or not the Defendant’s workmen were at the transformer on Sunday 21st June 2015.  Whether or not the Defendant’s workmen attempted to connect power to other households would be considered together.  Whether or not there were several power outages during the time the defendants’ workmen were at the transformer trying to reconnect power supply to other households. It is observed that counsel for plaintiff did not address the above issues raised at directions. But addressed the court only on his issue (vii) only, but gave no indication that he has abandoned the other issues. The court is duty bound to analyse the issues to conclusion. The Defendants have denied the fact that its workmen were on duty at the transformer that serves the Plaintiff’s area on 21/06/2015. Sundays are usually rest days for all manner of workers; except for special service providers as; Fire Service, Doctors and Nurses maybe ECG who may be on stand by for emergencies. It is a fact from the evidence on record that, the plaintiff was not at home when the unfortunate fire incident occurred. Therefore, I have no doubt that she built her story around pieces of information made available to her particularly PW1. With that said, it is the Plaintiff who had alleged that Defendant’s workmen were on duty on that Sunday trying to restore power to other households in the area. According to PW1, he called ECG staff to report that there was no light when in fact they were scheduled to have light. Not quite long, ECG officials came and worked on the transformer nearby. It is his evidence that after they had left, power was restored to his house, that of plaintiff and others. Then the outages/surges that they experienced stopped. According to him, few minutes later, he saw smoke from Plaintiff’s house. He rushed to the roadside to call defendants workmen and not long the workers came back to the scene. He continued that, a neighbour called fire service which arrived to help put out the fire. He attributed plaintiff’s loss to the negligence of the defendant’s workmen. Apart from PW1, no one else saw or noticed the presence of the Defendant’s workmen on that faithful Sunday afternoon. Though he claimed to have also suffered damage to his electrical appliances no evidence was produced. In denial, Defendant tendered Exhibit 1A and 1B. The Exhibits which are records from defendant’s log book. The records contain relevant maintenance, fault sections and control operations site covered over the period including the date the incident occurred. Though Counsel for Plaintiff raised issues with the Exhibits, the Court has no reason to doubt the authenticity of the exhibits. Having examined the relevant pages of the two Exhibits thoroughly and carefully, I observed the documents contains no activities of the defendant’s workmen around plaintiff’s area of residence. There are no cancellation or erasure to suggest concealment of any information. The conclusion drawn there is that no maintenance or fault was reported on 21/06/2015 and there is no indication that ECG per its workmen carried out any activities on any transformer on 21/06/2015 or any transformer in the Plaintiff’s area of residence. This Court thus consider the story told by PW1 on which the Plaintiff built her story is very doubtful, full of conjecture and cannot be believed. Most of his assertions could not reconcile as an eye witness he claimed to be. When PW1 was cross examined on 25/01/22, this is what he said in answers to questions put to him: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Did you know George Kpega. I know him. Is he the one who called Fire Service. No. Exhibit A revealed that George Kpega was at the scene of the incident. No. Did you see George Kpega at the scene. No. Did you call the fire service. No. You know as a matter of fact that ECG are not supposed to put out fire. Yes. Q: A: Q: A: Any reason you did not call Fire Service. No. You were not at all of the scene. I was. I helped brought out some of the items outside. Contrary to PW1’s story Exhibit A tendered by plaintiff suggests that, Mr George Kpegah was an eye witness. It was he who raised alarm which attracted neighbours. One Mr Safiwe then called the fire service. The report made no reference to PW1 or defendant’s workmen at the scene. But this same witness said when he detected the smoke, he walked about five (5) minutes to the road side to place a call to ECG and they came back to the scene. And a neighbour to Plaintiff quickly called Fire Service for assistance and the personnel quickly responded. Flowing from the above, therefore, I hold the view that the witness was either coached to give the evidence he led or he was confused. I agree with Counsel for the Defendant that it is Plaintiff who asserts and it is she who must discharge the burden placed on her in law. It is pedantic to say that a civil cases the plaintiff has the duty to prove his/her case and that no weakness in the defendant’s case can avail her. Said in clearer unambiguous professional terms, plaintiff has the burden of proof. Admittedly, the plaintiff may rely on the weakness in the defendant’s case after he has been able to prove his own case. Therefore, what plaintiff ought to do to obtain judgment in this case was to adduce sufficient evidence devoid of conjecture to prove that the existence of the facts, the basis of her claim in this case, is more probable than its non-existence. Please see the case of Nartey V Mechanical LIoyds Assembly Plant Ltd. (1987) 2 G L R page 344 Addade JSC held; “A person who comes to court no matter what the claim is must be able to make a case for the court to consider otherwise he fails”. The Court of Appeal per Ayirebi J A in the case of Fordjour V. Kaakyire (2015) 85GMJ 61 held at page 93 as follows; “It has to be noted that the court determines the merits of every case based on legally proven evidence at the trial and not mere allegations or assertions in the pleadings. A bare assertion without adducing evidence in support of that assertion is not evidence to require denial in cross examination by the opponent.” With the above finding therefore, the Plaintiff per her evidence has not established by any positive evidence that Defendant’s workmen were at the said transformer on that faithful Sunday. I proceed to consider the rest of the Issues 4, 5 and 6 and 7 together. Whether or not the fire that guttered the Plaintiff’s kitchen and part of the house was due to over voltage from outside which resulted in the overheated wall socket where the fridge was plugged. Whether or not the fire outbreak was due to faulty electrical socket; and Whether or not the plaintiff’s fridge was connected directly to the wall socket or electrical socket outlet, and Any other issues arising out of the pleadings but not specifically pleaded. I am glad that counsel for plaintiff appreciated that the plaintiff in a case such as, damages for negligence, owe a duty to establish his case first. He rightly made the point in his written address. Please see Zabrama v. Segbedzi (1991) 2 G L R. 221 Akuffo Addo v. Catherine (1992) 2 G L R. 377. According to counsel for plaintiff, a crucial issue that arise from the pleadings which was not pleaded is the issue of “negligence”. That is whether or not the Defendant and its workmen were negligent towards the Plaintiff. As is expected, learned Counsel for Plaintiff developed nicely what constitute negligence in Tort Law. He placed reliance on the case of Allasan Kotokli vs. Moro Hausa GLR 308, Lochgelly Iron & Coal Company Ltd. v. McMullan [1934] CA 1 of 25, our famous Donoghue v. Stevenson on the duty of care in law and invited the court to apply the above principles in favour of the plaintiff. Counsel for plaintiff did not address on any of the issues raised at direction. Now plaintiff stated that, her house would not have been burnt and damaged resulting therefrom but due largely to the negligent handling of the transformer by the workers of the Defendant Company in their attempt to restore power to the other houses on the said date. She was empathic that, Defendant have been negligent because they did not take reasonable and effective measure whether by inspection or otherwise to ensure that there would be no risk of fire to other households. Now, the cause of the fire has been stated in Exhibit A tendered and relied on by the Plaintiff. At page 2 of the Exhibit A, the Ghana National Fire Service stated per its investigation conducted revealed that: 1. The fridge was on. 2. The fridge was close to the socket where it was plugged in. 3. The socket was faulty thereby generating heat due to recent power outages. 4. Patterns of burnt indicated that the fire started from socket where the fridge was plugged. 5. The socket was seen on switch position. 6. The electrical wire connected to the underside of the fridge was severely burnt. 7. Critical look at the electrical wire suggested that the wires were brittle. Though the Plaintiff later disagreed with the report Exhibit A, she did not call for any independent findings or assessment of conclusion reached by GNFS, therefore I have no compelling reason to reject Exhibit A. Plaintiff having alleged negligence, the law places the burden of proof in an action for damages for negligence to rest primarily on the Plaintiff, who, to maintain the action must show that he was injured by a negligent act or omission for which the Defendant is in law responsible. This involves the proof of same duty owed by the Defendant to the Plaintiff, same breach of that duty and an injury to the Plaintiff between which and the breach of duty a causal connection must be established. I have said elsewhere in this discussion that the stories upon which plaintiff built her case was told to her. She admitted boldly that she was not there. Her source of information was PW1 who turned out not to aid her much with the sough of evidence he professed. The totality of his evidence was contradictory and most unreliable. The Court is of the view that the only reliable piece of evidence to determine whether or not the activities of ECG had any remote cause to the fire of 21/5/2015 at Plaintiff’s house leading to the damages she claims can be found in Exhibit A. Admittedly, almost every Ghanaian was a witness to the Nation’s electricity problems which was later christened “Dumsor”. It is common knowledge that many households suffered losses due to the unimaginable power outages during the period of “Dumsor” particularly at its peak in 2015. The discussion has not ceased. Be that as it may, every case must be looked at on its merit from the facts it presents. As I do not hold the view that all fires and losses occurring at the time were as a result of the “Dumsor”. In the instant case, the cause of the fire has been stated in Exhibit A. Though the Plaintiff relied on it at the trial but later disagreed with it, no contrary evidence, (expect) has been provided by the Plaintiff to assist the Court. The Ghana National Fire Service’s investigation and the conclusion reached has not been challenged and so this Court is bound by the finding in Exhibit A in absence of a contrary opinion. Now the cause of the fire outbreak had been stated at paragraph 3, 5, and 7 of the investigation report; and for better understanding I reproduce same as follows: 3. The socket was faulty thereby generating heat due to the recent power outages. 5. Patterns of burn indicate that the fire started from the socket where the fridge was plugged. 7. Critical look at the electrical wires indicate suggested that the wires were brittle. Supposed cause – Electrical fault. Admittedly, the faulty socket as the cause of heat generating cannot be denied. Exhibit A is conclusive that the supposed cause was Electrical fault. This conclusion was reached because the; 1. The socket was faulty and the wires were brittle (Not durable) even though the Plaintiff claimed to have the best quality of electrical wiring and protective devices in the house. I will not doubt the fact that plaintiff used electrical cables imported from the United Kingdom for perhaps it durability, but the reliance on its eternal durability I cannot accept. It is trite learning that amongst the subject matter on which expect evidence may be given include but not limited to ballistic finger print, postmarks and trade terms and fire just to mention a few as also pointed out by counsel for defendant. With the subject matter under consideration, the Ghana National Fire Service are the only credible and disinterested witnesses that can provide evidence or report on the case of the fire in Plaintiff’s house. Section 26 of Act 537 of 1997. I agree with Counsel for Defendant that the fire service report exhibit A is essential to this case. Apart from what is contained in Exhibit A, this Court has not been provided with any other expertise findings to contradict the work of Ghana National Fire Service as tendered. Before plaintiff proceeded against the defendant, she has tempered with the scene by causing repairs by herself and the court is thus disabled and unable to order further investigation for an independent view. The Court therefore accepts the cause of fire as electrical fault. What Causes Electrical Fault? The most common electrical problems are frequent power surges, plug sockets, poor appliance wiring, lose electrical connections as electrical fixtures loosen up over time which increases the likelihood of metal components to come in contact with each other and can cause fire. Further study revealed that, there are three most common electrical faults. 1. Circuit breaker problems. 2. Electricity surges, sags and dips. 3. The house has scares or dead outlets The above findings take the discussions back to the investigations contained in Exhibit A paragraph 3 (supra) the socket was faulty thereby generating heat due to power outages. From what I make of the above, the faulty socket is the cause of the fire outbreak in Plaintiff’s house and nothing more. From the discussions so far, Plaintiff has not been able to prove that the Defendant’s workmen worked at the transformer in her area of residence. It is a fact that the area had light on the day in question and those houses allegedly which did not have light, have not been made out to the Court. If the Plaintiff suffered fire as a result of the power outages, it is believed that others likewise in the neighbourhood must be affected, who may have inferior sockets. His Lordship Dotse JSC the distinguished Jurist speaking further on burden of proof by a claimant recently said in the case of; Eric Asante v. The Republic [2017] 109 G. M. J 1 at page 8, decided; “it must be noted with all emphasis that where a party in a trial refers to matters that are capable of independent proof in a positive manner and those matters are denied, the party does not establish the truth of those matters by stating them in the witness box and failing to proffer the other evidence which in the circumstances of the case should be available. Where the circumstances of the case are such that there can be no corroborative evidence, that will be a different matter.” Similarly, Appau JSC, held in the case of EMMANUEL OSEI AMOAKOV. STANFORD EDWARD OSEI [substituted by Bridget Osei Larty] Civil App. No. J4/3/2016 DATED 1/06/2016 SC [Unreported] as follows; “Judgments must be based on established facts not mere rhetoric or narrations without supporting evidence that can sustain the claim.” Please see also the case of JACQUELINE ASABRE & ANOR V. ABOAGYE ASIM [2017] 109 GMJ 206 at page 235. CONCLUSION I find it strange that plaintiff who claimed to have the best electrical wiring and fittings to be affected this badly amongst the multitude in her neighbourhood. As much as the court sympathises with plaintiff on her losses, she has been unable to discharge the burden of proof, the alleged negligence against the defendant company. The plaintiff’s evidence fell below the standard of proof under our Section 12, and 14 of the Evidence Act, 1975 (NRCD 323) Therefore, the Court finds as a fact that, the cause of fire that guttered the Plaintiff’s house was the faulty socket resulting in overheating of her socket where the fridge was plugged. Her case for the above reasons stated, fails as result and same is dismissed. The court awards cost of GHC1000.00 to the defendants. (SGD.) CHARITY A. ASEM (MRS) J. (JUSTICE OF THE HIGH COURT) NELSON M. KPORHA FOR PLAINTIFF - ABSENT S M K DZIKUNU FOR DEFENDANT – PRESENT vmo* 16