BRIGHT ASANTE APPIAH VRS HUANG YUMIN & ANOR (J4/06/2024) [2024] GHASC 16 (17 April 2024)

IN THE SUPERIOR COURT OF JUDICATURE IN THE SUPREME COURT ACCRA – A.D. 2024 CORAM: BAFFOE-BONNIE JSC (PRESIDING) KULENDI JSC ACKAH-YENSU (MS.) JSC KOOMSON JSC KWOFIE JSC CIVIL APPEAL NO. J4/06/2024 17TH APRIL, 2024 BRIGHT ASANTE APPIAH ………. PLAINTIFF/RESPONDENT/RESPONDENT VRS 1. HUANG YUMIN DEFENDANTS/APPELLANTS/ 2. SUNLIGHT ENGINEERING LTD APPELLANTS J U D G M E N T KWOFIE JSC: This an appeal by the defendants/appellants (hereinafter referred to as the 1st defendant and 2nd defendant respectively) against the decision of the Court of Appeal allowing in part, the appeal from the judgment of the High Court, Tema dated the 12th day of April 2021. The judgment of the Court of Appeal against which this appeal is brought was delivered on 19th October 2022. Page 1 of 15 The facts of the case are fairly simple and straight forward. The plaintiff/respondent (hereinafter referred to as the plaintiff) is an employee of Trio Courage Ltd, a Company situate within the light Industrial Area of Community 9, Tema. The plaintiff’s place of work is situate on the same street as the premises of the 2nd defendant company and within the same enclave. The 1st defendant Huang Yumin, a Chinese national is an employee of the 2nd defendant company and lives at the company’s premises. On the 27th March 2016, the plaintiff was returning home from work on foot using the street linking plaintiff’s place of work to the main road along which is situate the 2nd defendant company’s premises. Upon reaching the gate of the 2nd defendants company, the plaintiff saw a vehicle being driven by the 1st defendant pull up at the gate and toot its horn. The plaintiff avers that shortly after the gate was opened, two large foreign bred dogs emerged from the premises and on seeing him, the dogs charged menacingly towards him. The plaintiff, being apprehensive of the impending attack from the dogs took to his heels for safety with the dogs in tow. The plaintiff while running from the dogs fell heavily and sustained injuries and was taken to the Tema General Hospital whereupon he was referred to the 37 Military Hospital where he was admitted. It is for the injury sustained as a result of the attacks by the 1st defendant’s dog and the expenses incurred by the plaintiff which gave rise to the instant action by the plaintiff against the defendants wherein the plaintiff claimed the following reliefs per his Writ of Summons: a) The sum of GH¢9000.00 as special damages b) General damages for the defendants negligence c) General damages for injuries, pain and suffering, shock and loss of income d) Any other reliefs as in the circumstances may be just. The 1st defendant admits ownership of the dogs in the Company’s yard on the day of the incident but denies that the dogs came out of the Company’s yard where they were kept and chased the plaintiff. The 1st defendant denied the plaintiff’s claim that he fell in an attempt to run away from the dogs who were running menacingly towards him. He asserted that he only got to know of the plaintiff’s fall when he was informed of it by a Page 2 of 15 passerby. Consequently, the defendants denied being liable to the plaintiff for any injury sustained through the fall. Judgment of the High Court The High Court gave judgment in favour of the plaintiff for all the reliefs claimed by him. Specifically, the High Court awarded the plaintiff a total sum of GH¢115,573.74 in respect of special and general damages under various heads including damages for disability and incapacity, loss of income, loss of amenities of life and general damages for the defendants negligence. The defendants appealed against the judgment of the High Court to the Court of Appeal. Judgment of the Court of Appeal The Court of Appeal allowed the defendants’ appeal in part and substituted an amount of GH¢9000. 00 for the sum of GH¢15,933.74 awarded by the trial judge as special damages on the basis that the plaintiff did not plead the transportation cost which was part of the special damages awarded by the trial court and therefore could not be qualified as Special Damages. Feeling yet aggrieved and dissatisfied with the judgment of the Court of Appeal, the defendants have further appealed to this apex court against the decision of the Court of Appeal in a further throw of the dice. Grounds of Appeal Before The Supreme Court i) The Court of Appeal erred in holding that the plaintiff’s injury was caused by the 1st defendants negligence ii) The Court of Appeal erred in holding that the 1st defendant’s dogs were mischievous and dangerous when there was no credible evidence on record to support that (sic) that the dogs were dangerous and mischievous Page 3 of 15 iii) The Court of Appeal erred in holding that the 2nd defendant was liable in negligence for the injury caused to the plaintiff when the 2nd defendant had no responsibility over the dogs and was not the owner or keeper of the dogs. iv) The judgment is against the weight of evidence v) The Court of Appeal erred in upholding the trial judge’s quantum of general damages awarded in favour of the plaintiff when the assessment of damages was unreasonable, excessively high and based on wrong principles of law resulting in entering erroneous award of damages in plaintiff’s favour vi) The Court of Appeal erred in the award of GH¢9000 as Special Damages in favour of the plaintiff when the plaintiff failed to specifically prove the amount awarded. vii) Further grounds may be filed upon receipt of the record of appeal. It is noted for the record that no additional grounds of appeal were filed by the defendants. Determination of Issues Grounds of Appeal Ground 1. In ground 1 of the appeal, the defendants have contended that the Court of Appeal erred in holding that the plaintiff’s injury was caused by the 1st defendant’s negligence. As can be seen this ground of appeal as set out does not comply with Rule 6(2) (f) of the Supreme Court Rules which provides as follows: “6(2) (A) Notice of Civil Appeal shall set forth the grounds of appeal and shall state ............ ................................................................... (f) The particulars of any misdirection or error in law, if so alleged” Although the defendant alleges that the Court of Appeal erred in holding that the plaintiff’s injury was caused by the 1st defendant’s negligence, no particulars of the error so alleged is provided in complete violation of Rule 6(2) (f) of C.I. 16. This Court has affirmed and enforced in a number of cases the need for the express stipulation of this Rule to be Page 4 of 15 complied with. In the case of Faustina Tetteh vs. T. Chandiram of Co. Ghana Ltd and 4 others (2017-2020) 2 SCGLR 770, this Court held dismissing grounds, 1 to 10 of the appellants grounds of appeal due to the non-compliance with Rule 6(2) (f) of C.I. 16 as follows per Marful-Sau JSC: “Rule 6(2) (f) of the Supreme Court Rules, C.I. 16 requires an appellant who alleges error of law as a ground of appeal to provide the particulars of error alleged. This court has in several decisions expressed the need for practitioners to strictly comply with the rules that regulate proceedings in this court. Besides, it is trite that appeals are conferred by statute and for that matter parties who intend to exercise their right to appeal, must strictly satisfy the provisions of the statute conferring the right and rules of procedure regulating the appeal” The learned Justice of blessed memory further held that: “In Dahabieh vs. S. A. Turqui & Bros (2001-2002) SCGLR 498 this Court speaking through Adzoe JSC reiterated why appellants who alleged error of law as a ground of appeal ought to provide particulars thereof. At page 504 of the Report the learned jurist delivered himself as follows:” “we think that having regard to Rule 6, grounds (i) and (iii) as set out above do not comply with the Rules. Clearly, the intention behind Rule 6 is to narrow the issues on appeal and shorten the hearing by specifying the error made by the lower court or by disclosing whether or not a point at issue had earlier on been raised. By that way, both the court and counsel for the respondents would be enabled to concentrate on the relevant parts of the evidence in the record of proceedings and not waste time on irrelevant parts of the evidence. With respect to questions of law, it is necessary that the respondent and his lawyer know well in advance what Page 5 of 15 points of law are being raised so that they may prepare their case and marshall their authorities” We are of the view that ground 1 of the appeal as set out, failed to particularise the errors alleged by the ground to enable this court to effectively address same as required by law. Accordingly the offending ground (i) of the appeal will be struck out as it is non-compliant with the rules of this court. See also the case of Zabrama vs. Segbedzi (1991) 2 GLR 221. In his submissions before the court counsel for the defendants argued grounds (ii) and (iii), then ground (v), (vi) and the other grounds including ground (iv) that the judgment was against the weight of evidence. Counsel for the defendants attacked the findings of the trial judge and the Court of Appeal that the defendants were negligent in allowing the dangerous and mischievous dogs to leave the premises. Counsel further contended that there was no evidence before the trial court that the dogs were dangerous and mischievous. He further asserted that the 1st defendant was under no duty in law to prevent his dogs from escaping from his premises. He added that since negligence generally results from a breach of a legal duty to take care, it is not for every careless act that a person is to be held responsible in tort nor even for every careless act that causes damage unless he was under a legal duty to take care. The fundamental issues for determination in this case are whether or not the finding of the Court of Appeal and the trial High Court that the defendants were liable in negligence for the injury suffered by the plaintiff was justified and whether the plaintiff was entitled to damages arising from the injury he sustained. The Tort of Negligence is a legal wrong that is suffered by someone at the hands of another who fails to take proper care to avoid what a reasonable person would consider a foreseeable risk. By this, the law imposes a duty of care on all persons in their relation Page 6 of 15 with others so that the actions and inactions of a person does not culminate into the suffering of a resulting harm by another. Therefore, for an action in negligence to lie, the claimant must show that the defendant owed him a duty of care, that this duty of care has been breached by the defendant and that the Claimant has suffered harm by virtue of the breach. In Donoghue vs. Stevenson (1932) AC 560, Lord Atkin stated that: “the rule that you are to love your neighbor becomes in law, you must not injure your neighbor and the lawyer’s question, who is my neighbor? Receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who, then, in law is my neighbor? The answer seems to be- persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omission which are called in question”. From this quote above, it is clear that there is a duty placed on every member of the society to ensure that his or her conduct does not affect another. The trial High Court judge found that the defendants owed a duty of care to the plaintiff which duty the defendants breached by their neglect to confine the dogs to the compound. He further found that the breach of the duty of care to the plaintiff resulted in the two dogs leaving the premises to pursue the plaintiff, barking at the plaintiff and charging menacingly at him. With the plaintiff’s fear of imminent threat and harm to his person, he attempted to flee to safety but tripped and fell heavily and injured his arm in the process. In its judgment, the Court of Appeal stated relying on the English case of Knott vs. London County Council (1934)1 KB thus: “A person who owns a dog has a duty to ensure that the dog is kept in a manner that will restrain it from causing harm to other people. People keep dogs for different purposes such as security guards, hunting and pets. A Page 7 of 15 person who keeps a dog as a security guard or for hunting purposes has a higher standard of care to his fellow human being who may come into contact with them as a result of the special training given to them to make them unfriendly to third parties. Therefore a person who keeps a dog as a security guard such as the defendants in the case in point who kept the two dogs for that purpose, must ensure that they do not escape from their custody to threaten or harm people. It constitutes negligence where an owner of a dog allows the dog in his custody to escape to chase people or bite them. Admittedly it is not every careless act of a person that can constitute negligence unless the person is under a legal duty to take care. The evidence of the PW1 was clear on the fact that the dogs escape to torment people who make use of the road in front of the defendant’s premises and was under a legal duty to take care of those people from being chased by the dogs” This court is under section 9(1) of the Evidence Act, 1972 (NRCD 323) permitted to take judicial notice of the stature, might and behavior of guard dogs to unknown persons. As a matter of fact, it is these characteristics, amongst others that make such dogs to be referred to as “Guard Dogs”. This is a notorious fact known to all. It can therefore be said that the behavior of the said dogs running uncontrollably out of the 2nd Defendant’s premises anytime the gates were opened posed a threat to other users of the road. The uncontroverted testimony of PW1 at the trial court suggests that the dogs are in the habit of being in such mischievous behaviors, thus, all road users who are familiar with the behavior of the dogs are “alert” when plying that route. It is worth pointing out that the finding by the trial court that the defendants were negligent in allowing the 2 guard dogs to leave the premises unrestrained and to bark and pursue the plaintiff menacingly was affirmed by the Court of Appeal. The learned justices of the Court of Appeal held that: Page 8 of 15 “it is not unlawful to keep a dog for a particular purpose but the person who is keeping the dog must ensure that it does not escape from his custody or control to cause harm. Where a dog escapes from the control of the owner and causes harm, the owner is held negligent for allowing it to escape. The evidence on record shows that the defendants negligently allowed the dogs to escape from their premises to chase the plaintiff who was walking on foot to his house on a public way which is accessible to all persons” As the two lower courts ie. the High Court and the Court of Appeal concurred in their finding that the defendants were liable in negligence for the injuries sustained by the plaintiff, to succeed in this appeal, the defendants must demonstrate that the said decisions particularly that of the Court of Appeal was rooted in perversion such as to be an instance of miscarriage of justice. There is a long line of cases wherein this Court has reiterated the settled practice of appellate courts regarding concurrent findings of the lower courts. In the case of Gregory vs. Tandoh IV and Hanson (2010) SCGLR this Court stated the settled practice as follows: “we have noted that the Court of Appeal in its judgment concurred in the findings of fact made by the learned trial judge. There is this general principle of law which has been stated and re- stated in several decisions of this court, namely: that where findings of fact (such as in the instant case) have been made by a trial court and concurred in by the first appellate court, in this case the Court of Appeal, then the second appellate court (such as this Supreme Court) must be slow in coming to different conclusions unless it is satisfied that there are strong pieces of evidence on the record of appeal which make it manifestly clear that the findings of the trial court and the first appellate court are perverse” Page 9 of 15 A similar sentiment was expressed in the celebrated case of Achoro vs. Akanfela (1996-97) SCGLR 209 where the court specified what would suffice for it to interfere per holding 2 namely: “2) In an appeal against findings of facts to a second appellate court like the Supreme Court, where the lower appellate court had concurred in the findings of the trial court especially in a dispute, the subject- matter of which was peculiarly within the bosom of the two lower courts or tribunals, this court would not interfere with the concurrent findings of the two lower courts, unless it was established with absolute clearness that some blunder or error resulting in a miscarriage of justice, apparent in the way in which the lower tribunals had dealt with the facts. It must be established, eg. that the lower courts had clearly erred in the face of crucial documentary evidence, or that a principle of evidence had not been properly applied; that the finding was so based on erroneous proposition of the law that if that proposition be corrected, the finding would disappear. It must be demonstrated that the judgments of the courts below were clearly wrong” See the cases of Fynn vs. Fynn and Osei (2013-2014) 1 SCGLR 727 at 732-734 and the earlier case of Bisi vs. Tabiri alias Asare (1987-88) 1 GLR 360 SC; Nantwi & Nantwi vs. Amenya (2017-2020)1 SCGLR 972. We agree with the concurrent findings of fact by the High Court and the first appellate Court that the defendants were liable in negligence by allowing their 2 dogs to leave the premises and menacingly pursue the plaintiff who out of fear of imminent attack fled for his life and in the process fell and injured his arm and suffered other injuries. It is unnecessary to delve into the reasons. It suffices only to say that it is surprising that the Page 10 of 15 defendants feel that they should be allowed to get away with the dangerous behavior of their guard dogs who from the evidence terrorise residents of the area. Counsel for the defendant also attacked the Court of Appeal in upholding the trial judge’s quantum of general damages awarded in favour of the plaintiff. He contended that the assessment of damages was unreasonable, excessively high and based on wrong principles of law resulting in an entirely erroneous award of damages in plaintiffs favour. The defendant argued further that the figures used by the trial judge in the assessment of damages amounted to punishing the defendants for their wrong doing rather than awarding the plaintiff what he called fair compensation in the circumstances. In the case of Appiah vs. Anane (2017-2020) 2 SCGLR 828 this court speaking through Amegatcher JSC dealt with the dilemma and challenge of assessing damages for personal injuries as follows: “Admittedly, awarding damages in the form of monetary compensation for personal injury claims is not an easy task. One cannot conjure any figure at all or have a table with some guidelines or by any arithmetic exactitude establish what is the amount of money which would represent pain and suffering which a person like the plaintiff has been occasioned in an accident. No two claims in such injuries can be compared and figures of one cannot be imposed on the other. This is where the dilemma and challenge lie .......... we believe the facts of each case should determine which compensation the court should award in claims for personal injuries” In the English case of H. West & Son, Ltd vs. Shephard (1963) 2 A11 E.R. 625 H.L. at 636, Lord Devlin set out the various heads of damages a Court may consider in a claim for personal injuries in the following words: “The case raises a fundamental question on the nature of damages for personal injury. There must be compensation for medical Page 11 of 15 expenses incurred and for loss of earnings during recovery. These are easily quantified, whether as special or as general damage. Then there is compensation for pain and suffering both physical and mental. This is at large. It is compensation for pain and suffering actually experienced. Loss of consciousness, however caused whether by the injury itself or produced by drugs or anesthetics, means that physical pain is not experienced and so has not to be compensated for; and this must be true also of mental pain. Then there is or may be a temporary or permanent loss of limb, organ or faculty. Whether it is the limb itself that is lost or the use of it is immaterial. What is to be compensated for is the loss of use and the deprivation thereby occasioned. This deprivation may bring with it three consequences. First, it may result in loss of earnings and they can be calculated. Secondly, it may put the victim to expense in that he has to pay others for doing what he formerly did for himself; and that also can be calculated. Thirdly, it produces loss of enjoyment, loss of amenities as it is sometimes called, a diminution in the full pleasure of living. This is incalculable and at large. This deprivation with its three consequences is something that is personal to the victim. You do not, for instance, put an arbitrary value on the loss of a limb, as is commonly done in an accident insurance policy. You must ascertain the use to which the limb would have been put, so as to ascertain what it is of which the victim has actually been deprived” What was the assessment of damages made by the trial court and affirmed by the Court of Appeal? The trial High Court awarded damages for disability and incapacitation, disfigurement, pain, suffering and shock, loss of amenities of life and general damages totalling GH¢99,440.00 excluding special damages of GH¢15, 933.74. Page 12 of 15 In respect of disability, incapacitation and disfigurement the Medical Report prepared by the Trauma and Orthopedic Surgeon who treated the plaintiff assessed it at 30% and assessed his post-traumatic stress syndrome at 10%. The plaintiff was thus awarded GH¢10, 440.00 as damages for disability and incapacitation. In respect of disfigurement, the plaintiff was awarded GH¢66,000.00 based on assessed disfigurement of 30%. The Court of Appeal in affirming the sum of GH¢99,440.00 awarded to the plaintiff as general damages set it sights correctly on the essence of damages when it stated as follows in its judgment: “The essence of damages is not meant to punish the defendants by conferring a windfall on the plaintiff and also not to disadvantage the plaintiff from getting the required compensation. Damages are awarded to compensate the injured party and taking into account the injuries sustained by the plaintiff as found in the exhibits the amount of GH¢99,440.00 awarded under different headings were meant to compensate the plaintiff and not to enrich him. Admittedly, the trial judge took into account irrelevant matters when discussing damages, but those matters did not influence the award as the sum of GH¢99,440.00 awarded as general damages under different headings cannot be said to be adequate compensation meant to enrich the plaintiff” We agree with their Lordships of the Court of Appeal that the sum of GH¢99,440.00 awarded as General damages under various headings were reasonable and we see no reason to disturb those findings. Special Damages With regard to special damages the defendants submitted that the plaintiff did not prove that he was entitled to the sum of GH¢9,000.00 awarded to him by the Court of Appeal Page 13 of 15 under Special Damages. The settled position of the law is that Special Damages unlike general damages must be pleaded, particularized and specifically proved. This was affirmed by this Court in the case of Delmas Agency Ghana Ltd vs. Food Distributors International Ltd (2007-2008) SCGLR 748 at 760 where the Court stated that: “where the plaintiff has suffered a properly 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 applicable” The evidence on record shows that the trial Court awarded the plaintiff the sum of GH¢15,933.74 as Special Damages to cover the cost of drugs and medical treatment, cost of police Report, sundry expenses etc. This figure included an amount of GH¢6,933.74 being the cost of transportation. The record shows that this sum of GH¢6,933.74 covering the cost of transportation was not pleaded by the plaintiff. The Court of Appeal in our view was right in excluding this amount from the sum of GH¢15,933.74 awarded by the trial court as Special Damages. We therefore find that the sum of GH¢9000.00 awarded by the Court of Appeal as Special Damages was clearly pleaded and proved by the plaintiff. With respect to the issue of the award of general and special damages, this Court finds the decision of the Court of Appeal to be sound and justified in law and we will allow the award of damages stand without any modification. On the whole, we find no merit in the appeal of the appellants and dismiss same. We affirm the decision of the Court of Appeal dated 19th October 2022 and the judgment of the trial High Court as modified by the Court of Appeal. (SGD) H. KWOFIE (JUSTICE OF THE SUPREME COURT) Page 14 of 15 (SGD) P. BAFFOE-BONNIE (JUSTICE OF THE SUPREME COURT) (SGD) E. YONNY KULENDI (JUSTICE OF THE SUPREME COURT) (SGD) B. F. ACKAH-YENSU (MS.) (JUSTICE OF THE SUPREME COURT) (SGD) G. K. KOOMSON (JUSTICE OF THE SUPREME COURT) COUNSEL NANA ACKAH-WATSON JAINIE ESQ. FOR THE DEFENDANTS/APPELLANTS/ APPELLANTS WITH HIM, THOMPSON ADJIABER. KWAKU ADU MINTAH ESQ. FOR THE PLAINTIFF/RESPONDENT/ RESPONDENT WITH HIM REV. FATHER MICHAEL YAW BOAMAH. Page 15 of 15