Addae v Frimpong and Another (C1/122/2020) [2024] GHAHC 546 (2 December 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURTOF JUSTICE, COMMERCIAL DIVISION “B” (GENERAL JURISDICTION) HELD AT SUNYANI ON MONDAY THE 2ND DAY OF DECEMBER, 2024 BEFORE HER LADYSHIP JUSTICEJOYCE BOAHEN, HIGH COURTJUDGE SUITNO. C1/122/2020 ADDAEESTHER PLAINTIFF VS. 1.EMMANUELFRIMPONG DEFENDANTS 2.FORM GHANA (FOREST FORTHE FUTURE) JUDGMENT Plaintiff present 1stDefendant absent 2ndDefendant represented by MarianAwuni, Human Resource Development Manager EmmanuelOseiAsibey holding brief ofFrempong Boamahfor thePlaintiff AbdulLatif Shaibu holding brief ofNana YawNtrakwahforthe 2nd Defendant 1 THEPLAINTIFF’SCASE Per her pleadings and evidence in chief the Plaintiff resides at “Dr. Berko”, “Adjei-Ano South” a suburb of Sunyani. The 1st Defendant is a driver by profession and was in charge of the 2nd Defendant’s vehicle with registration number GR 1805 – 13 when the accident occurred. The 2nd Defendant is a company established under the laws of Ghana carrying on the business of reforestation and other forestry services situate in Sunyani. It is the Plaintiff’s case that the 2nd Defendant is vicariously liable for the torts of its employee, the 1st Defendant in the normal course of the 1st Defendant’s employment. The Plaintiff was an employee of the 2nd Defendant Company between February 2015 and November 2019 and that her engagement by the 2nd Defendant was for a fixed term contract of six (6) months as Management Assistant stationed at Berekum. The contract of engagement was executed on 1st January, 2016. According to the Plaintiff she discharged her duties to the best of her ability in the 2nd Defendant’s employ and to the 2nd Defendant’s benefit. She never breached any of the company’s regulations whilst in theemployment ofthe 2ndDefendant. The Plaintiff states that due to the nature of the 2nd Defendant’s business, the workers are usually transported in a company vehicle to the site of work. On 5th July, 2019 while she and some employees of the 2nd Defendant Company were being transported to the site of the 2nd Defendant’s company for work, the vehicle with registration number GR 1805– 23 was involved in a near fatal accident near the Tain River towards Tain II Forest 2 Reserve. According to the Plaintiff the near fatal accident occurred because of the negligence ofthe1stDefendant. Shelisted theparticularsofnegligence asfollows; a. Driving at topspeed at(sic) dangerousplace b. Failing todrive withdue care According to the Plaintiff, she collapsed, lost consciousness due to the accident. When she gained consciousness, she was told that she was at Berekum Holy Family Hospital. Due to the carelessness of the 1st Defendant which led to the accident she suffered loss of blood, broken jaw, bodily pain and trauma. She listed the particulars of injury as follows; i. Serious bodily pain and brokenjaws ii. Cannotsit forlong iii. Loss ofblood iv. Trauma 3 It is the Plaintiff’s case that a day after the accident a doctor instructed her to conduct a scan which revealed that she had an “incisional hernia”. The Plaintiff contends that because of the accident she is unable to do anything and she has been permanently disabled since the date of the accident. She cannot walk for a long distance and she has undergone four surgical operations and is preparing to undergo a 5th one. The Plaintiff avers that she has spent not less than Ghs 7,100.00 because of the accident. She claims special damagesasfollows; Accident report –Ghs100.00 Hospitalexpenses–Ghs 5,000.00 Miscellaneous expenses–Ghs 2,000.00 Total–Ghs 7,100.00 On 18th July, 2019 she lodged a complaint of nausea and drowsiness at the Green Hill Medical Centre. She was given one week excuse duty which she presented to the site nurse of the 2nd Defendant on duty. Her medical condition of nausea, drowsiness and dizziness continued and she sought medical opinion from Dr.Berko’s Hospital, Sunyani. She was admitted for a further one week when she was diagnosed with malaria and she presented an excuse duty to management of the 2nd Defendant Company. Her health deteriorated as she underwent surgical operation at the Sunyani Municipal Hospital. She continued to visit the hospital for dressing of the wound. She experienced pain in 4 her chest region so she could not be going to work. It is the Plaintiff’s case that she endeavouredtoupdate her employerthe 2nd Defendant about her healthcondition. Any time her state of health was failing and she experienced pain she obtained excuse duty from a medical doctor and notified her employer about her absence from duty regarding all the excuse duties.Anytime she reported to duty she experienced pain and a discharge from the wound as it was not completely healed. Upon the 2nd Defendant’s persistent calls for her to resume work she petitioned management and lodged a complaint about her state of health and sought permission to attend to her health. The Plaintiff contends that because of the laborious nature of her work which posed dire consequences to her health coupled with her wound which was not completely healed and pains she experienced in her chest she attended hospital regularly and continues to attend hospital.Although she sent a petition to her employer expressing her inability to work because of her health, the 2nd Defendant sent her a suspension letter without any foundationand tangible reasonon12th November,2019. Before she could organize herself to go to work, she received another letter from the 2nd Defendant terminating her employment. The Plaintiff avers that her suspension blatantly disregarded the rules of natural justice as she was not given opportunity to be heard. Her termination is also without due regard to law, common sense, equity, good conscience, fairness etc. The Plaintiff contends that she hasworked with industryfor the 2nd Defendant and that during the course of her employment she had an accident which 5 occasioned her trauma, pain discomfort and inconvenience. By wrongfully suspending and terminating her employment the 2nd Defendant caused her aggravated stress and inconvenience. Wherefore the Plaintiff claims the following reliefs against the Defendants jointlyand severallyasfollows; a) General damages for the bodily pains, loss of blood, trauma when the 1st Defendant then in charge as a driver of vehicle with registration number GR 1805 – 13 carelessly and without due care drove the said vehicle causing an accident leading to severe bodily injurytothe Plaintiff. b) Recovery of cash, the sum of Ghs 7,100.00 being the cost of treatment, drugs, transportation that the Plaintiff incurred in connection to the injuries that she sustained. ANDagainst the 2ndDefendant alone for thefollowing reliefs; c) Declaration that, the termination of the employment of the Plaintiff by the defendant wasunlawful, improperandan abuse ofthe naturaljustice rule. d)Generaldamagesfor unlawfulterminationofemployment. 6 e) Compensationforunlawful terminationofemployment. f) Any furtherorder(s)that the honourable Courtshall deemfit. g) Special damages. h) Solicitor’s cost Inher evidence in chief the Plaintiff repeated her pleadingsand tendered hercontract of engagementas exhibit “A” Police accident reportthroughthe 2ndDefendant asexhibit “B” Exhibit “C”isareportfromNational Catholic HealthService Exhibit “D”is excuse duty fromGreenhill Medical Centre Exhibits “E”, “E1”, “E2”, “E3”, “E4”, “E5”, “E6”, “E7”, “E8”, “E9” are medical reports fromthe BrongAhafoRegional Hospital Sunyani Exhibits“F”,“G1”and “G2”areexcuse dutyforms Exhibit “H”is notice tothe Plaintiff to resume dutyby the 2nd Defendant Exhibit “J”is “Still petitionand complaint about my health” 7 Exhibit “K”is letterofsuspension Exhibit “L” is “Terminationofemployment letter Exhibits “M”, “M1”, “M2”, “M3”, “M4”, “M5”, “M6”, “M7”, “M8”, “M9”, ‘”M10”, “M11”, “M12”, “M13”, “M14”, “M15”, “M16” and “M17” are receipts of expenses incurred by the Plaintiff totreat herself THE2NDDEFENDANT’SDEFENCE In the 2nd Defendant’s statement of defence it averred that it employed the Plaintiff on 3rd August, 2015 and that the Plaintiff’s contract was with Form Ghana Limited. The 2nd Defendant admitted that on 5th July, 2019 the Plaintiff was involved in an accident with the 2nd Defendant’s vehicle but disputed the Plaintiff’s claim that the said vehicle was transporting workers of the 2nd Defendant including herself to work, neither did they admit that the accident was nearly fatal. It is the 2nd Defendant’s case that after the accident the Plaintiff was medically examined at the Holy Family Hospital Berekum and observed that the Plaintiff did not suffer any bruises, cuts or fractures. The 2nd Defendant contends that three out of the four surgical operations that the Plaintiff underwent were performed prior to the Plaintiff’s employment by the 2nd Defendant and that the fourth and fifth alleged surgeries are not as a result of or related to the accident. 8 That all medical expenses incurred by the Plaintiff regarding the accident were paid by the 2nd Defendant. It is the 2nd Defendant’s case that the Plaintiff was suspended for failing to obey instructions. The 2nd Defendant admitted that it terminated the Plaintiff’s employment lawfully and fairly by a letter dated 25th November, 2019. That per the Plaintiff’s contract of employment either party to the contract could terminate the contract of employment by giving the other party three months’notice or three months’ pay in lieu of notice which they paid to the Plaintiff and she acknowledged receipt of payment. According to the 2nd Defendant, the Plaintiff is not entitled to the reliefs indorsed in her writ of summons. In its evidence in Court given on its behalf by Marian Awuni, the Human Resource Development Manager ofthe 2nd Defendant Company,she indicated that she has workedwith the2nd Defendant for six (6)years. She confirmed that the Plaintiff and the 1st Defendant were employees of the 2nd Defendant Company and that the Plaintiff was employed by the 2nd Defendant as Management Assistant in the year 2016. The 1st Defendant worked with the 2nd Defendant from 2nd May, 2019 to 30th August, 2019 when his contract was terminated. According to the witness on 5th July, 2019 the company received information that its vehicle with registration Number GR 1805 – 13 (LT 05) was involved in an accident while transporting workers back from the work site. The 1st Defendant was the driver when the accident occurred. The Plaintiff who was on board the vehicle sustained 9 minor injuries and was rushed to the hospital where she was treated and discharged and her medical bills borne by the 2ndDefendant. According to the 2nd Defendant, the Plaintiff was treated for musculoskeletal pains. She complained of bodily pains on arrivalat the hospital, she had no bruises, no cuts and no fracture as revealed in the police accident report. A report was lodged with the police and it conducted investigations into the occurrence of the accident and examined the vehicle. She attached exhibit “1” a police accident report which also captured the report ofthe medical officer who treated the Plaintiff. The 2nd Defendant tendered exhibit “2” a report of the accident to the labour office at Berekum. The Plaintiff’s attendance to work after the accident was intermittent and the 2nd Defendant wrote a letter dated 7th November, 2019 exhibit “3” to the Plaintiff about her failure to perform her roles. The Plaintiff served management with a medical report from one Dr. Samuel A Fordjour, exhibit “4”. The report indicated that the Plaintiff was seen at the hospital and she was treated after undergoing laboratory examination and she was given medication. She was to report back to the hospital in a week after 8th November, 2019. The medical report implored management to cooperate with the Plaintiff but did not make recommendations about excuse duty. Management made a vehicle available for the Plaintiff to attend hospital on 15th November, 2019 but she declined and refused to go to the hospital. That the 2nd Defendant bore all the medical bills of the Plaintiff who was a member of the 2nd 10 Defendant’s health insurance policy and attached exhibit “5” to show that the Plaintiff used her health insurance since 5th July, 2019. The 2nd Defendant noted that the Plaintiff had undergone some caesarian sections prior to the accident which was corrective procedure incidental to the previous surgeries which has nothing to do with the accident and therefore not related to the accident. The 2nd Defendant terminated the Plaintiff’s employment on 25th November, 2019 in accordance with the terms of her contract of employment exhibit “6” which required three months’ notice or three months’ salary in lieu of notice of termination. The 2nd Defendant paid the Plaintiff’s threemonths’salary inlieuofnotice per exhibit “7”dated 25th November,2019. EVALUATIONOF THE FACTS, EVIDENCE ANDAPPLICATION OF THELAW Issues set downfortrial bythe Courtdifferently constituted areasfollows; 1. (a) Whetherornot thePlaintiff is entitled to thereliefs she is seeking This is not an issue because the whole import of the Plaintiff’s case is whether or not she is entitled toher reliefs 2. Whetheror notit wasthePlaintiff who boreher medical expenses 3. Whetheror notthe vehicle involved in theaccident wasduly insured 11 4. Whether or not the accident was due to the negligence, carelessness, etc. of the 1st Defendant The Court is of the view that all the above issues can be subsumed under two issues as follows; 1.Whether or not the 2nd Defendantisvicariously liable for the tort of the 1st Defendant 2. Whether or not the termination of the employment of the Plaintiff by the 2nd Defendant was unlawful, improper and an abuseof the rulesof natural justice ISSUE1 Whether or notthe 2ndDefendant isvicariously liable forthe tortofthe 1st Defendant The record of proceedings shows that the writ of summons and statement of claim was served on the Defendants. Counsel for Defendants entered conditional appearance for both the 1st and 2nd Defendants on 8th May, 2020. On 20th May, 2020 Counsel for Defendants filed notice of withdrawal of conditional appearance for the 1st Defendant and filed statement ofdefence the same day for only the 2nd Defendant. The Plaintiff did 12 not pursue the 1st Defendant although the 2nd Defendant’s Counsel withdrew his representation for him. Counsel for 2nd Defendant argued that the Plaintiff alleged vicarious liability against the 2nd Defendant without proving negligence of the 1st Defendant. According to Counsel the 1st Defendant did not enter appearance to the suit and the Plaintiff did not take any stepagainst him. Counsel argued withreference tothe case of Alhassan Kotokoli v. Moro Hausa & Another (1967] Ghana Law Report (GLR) 298 and noted that for the Plaintiff to succeed in an action for negligence she must lead cogent evidence to establish the existence of a legal duty, a breach of that duty and damagesuffered as aresultofthat breach. This is not to hold brief for the Plaintiff for not pursuing the 1st Defendant. However, in the absence of the 1st Defendant there is no doubt from the evidence proffered by the parties that the 1st Defendant was the 2nd Defendant’s employee. Exhibit “N“ the contract of employment between the 1st and 2nd Defendant shows that the 2nd Defendant employed the 1st Defendant on 30th April, 2019 as driver grade “B” and Sub grade “B1” and he was on three (3) months’ probation when the accident happened. The accident report exhibit “B” as tendered by the Plaintiff and exhibit “1” as tendered by the Plaintiff through the 2nd Defendant shows that the 1st Defendant was working in the course of his duty by transporting staff of the 2nd Defendant including the Plaintiff from Form Ghana Plantation near Tain River towards Tain II Forest Reserve when the accident occurred. The 2nd Defendant’s own exhibit “2” a letter dated 22nd July, 2019 written by 13 the 2ndDefendant to the Labour Office Berekumnotifying it ofthe accident is instructive. The said letter gave further details of how the accident happened than what the police reportgaveas follows; We write to notify you of an accident involving our company vehicle with registration number GR 1805–13 On 5th July, 2019, at 15H45, a Form Ghana Ltd Vehicle collected a team of workers that had completed their days work in the plantation. On their way back to site, on reaching the summit of a hill, the engine of the vehicle stalled and started reversing, the driver trying to save the workers and the vehicle from falling into a ditch, tried steering to the left and in the process the vehicleturnedand fellgently on the side inthe middle of the road. All workers on board were taken to Holy Family Hospital, Berekum and have been treated and discharged (The company paid all their medical expenses). Cases treated were mainly musculoskeletal pain. The Court takes judicial notice of the 2nd Defendant’s claim that it bore the medical expenses of all the workers on board the vehicle. Regarding the Plaintiff the 2nd Defendant tendered medical expenses from 5th July, 2019 to 21st January, 2020 totaling Two Thousand, Nine Hundred and Six Ghana Cedis, and Thirteen pesewas (Ghs 2,906.13). The Court holds the view that if the 2nd Defendant owed the workers no duty ofcare it wouldnothavetakenthetrouble topay their medical bills. 14 The police report onthe accident indicatesthat; On5th July,2019at about3:45pm suspectdriver Emmanuel Frimpong was incharge Mitsubishi Counter Truck with registration No. GR 1805 – 13 with three persons on board, all are employees of Form Ghana Ltd were from Form Ghana Plantation near Tain River towards Tain II forest reserve. On reaching Tain II forest reserve whilst climbing a steep hill the suspect driver lost control of the vehicle and suddenly fellon the near side edge of the road. Three persons sustained various degree (sic) of injury and were rushed to Berekum Holy Family Hospital for treatment where they were tested (sic) and discharged on the same day. The accident Mitsubishi truckwas damaged. The Plaintiff in particular was treated with musculoskeletal pain. World Health Organization (WHO) at https://www.who>...>Detail explains musculoskeletal pain to include conditionsthat affectthe joints, bones, muscles and multiplebody areas or systems. The evidence led by the parties shows that after the accident the Motor Traffic and Transport Department (MTTD) of the Ghana Police Service Berekum conducted investigations on the vehicle. The report tendered as exhibit “B” by the Plaintiff and exhibit “1” by the 2nd Defendant showed that the vehicle was insured by Vanguard Assurance CompanyLimited No.075985 withpolicy number P0001 –1001–2013000003 issued on 1/01/2019 to expire on 31/12/2019 in the name of the 2nd Defendant, Form Ghana Limited. 15 The “engine of the vehicle stalled and started reversing” is an indication of lack of proper maintenance of the vehicle by the 2nd Defendant who is the owner of the vehicle. The 1st Defendant is an employee who responds to his employer’s call. He indeed owed a duty of care to the passengers to drive them safely but he was not in the Court’s view in control of maintaining the vehicle which belongs to the 2nd Defendant although his duties included maintenance of the vehicles. By the 2nd Defendant’s own rendition, the driver tried to save the workers and the vehicle from falling into a ditch, tried steering to the left and in the process the vehicle turned and fell gently on the side in the middle of the road. This indicates that the driver knowing that he owed a duty of care to the passengers on board the vehicle tried to salvage the situation which caused the vehicle tofallgentlyonthe side in themiddle ofthe road. This explains why the medical report of the medical doctor in the accident report indicated that the Plaintiff sustained no cuts and bruises an indication that the accident could have been worse but for the driver’s efforts at saving the lives of the passengers. This report ofthe accident by the 2nd Defendant appearsto be in contrast with the police report which says that while climbing a steep hill the driver lost control of the vehicle. The Court holds the view that a duty of care to the passengers on board the vehicle was not owed by only the 1st Defendant but also the 2nd Defendant who was obliged to maintain the vehicle particularly the engine which failed and resulted in the accident. This is not to say that if vehicles are maintained, accidents may not happen, accidents 16 may happen but the circumstances of this case where the engine stalled suggests that the engine was not in good condition causing it to stall and for the car to reverse and in that situation the driver being a professional driver as such could have stopped the reversal. From exhibits “1” and “2”, whether the “engine stalled and the vehicle started reversing” or whether the “driver lost control of the vehicle and it suddenly fell” are all evidence of the Defendant’s failure to uphold their duty of care towards the passengers being carried on their vehicle. From exhibits “1” and “2” as indicated supra, the Plaintiff’s claim that the 1st Defendant was driving at top speed could not be the case as argued by Counsel for 2nd Defendant because no reasonable man would believe that a driver climbing a steep hill would do so by speeding. However, her claim that the 1st Defendant failed to drive with due care is possible and as I noted earlier a professional driver of his sort could have stopped the reversal by applying the necessary brakes. In the light of the foregoing the Court holds the view that the 2nd Defendant was negligent in the first place by not keeping the engine of the car in good shape which caused the engine to stall and reverse while the 1st Defendant was driving it on a steep hill and althoughthe1st Defendant tried to savethe situationthe unfortunate accident happened whichfurther caused the Plaintiff to sustain injuriesas aresult. The Court is therefore of the view that the 2nd Defendant is first of all liable for not keeping the engine of the car in good shape which led to an accident while the 1st 17 Defendant was driving the car in his normal cause of work for which reason the 2nd Defendant is liable for the tort of the 1st Defendant. In the circumstance therefore the Plaintiff established negligence against the 2ndDefendant and vicarious liability of the2nd Defendant forthe 1stDefendant’s tortsin accordance withthe following cases. Inthe case ofEdward Nasser & Company Limited vs. Mcvroom andAnother [1996 – 97] Supreme Court of Ghana Law Report (SCGLR) 468 at 470 the Court held in holding (4) asfollows; In proving negligence in tort, the plaintiff must establish a duty of care owed by the defendant towards the plaintiff, which duty must arise from the nature of the relationship between them. Although a relationship of proximity must exist before a duty of care could arise, the duty must depend on all the circumstances of the case and it must be considered whether it was just and reasonable to impose a duty. On the facts of the instant case, the defendant had breached the duty of care owed to the plaintiffs and had been rightly held liable in negligence for the damage sufferedby the plaintiffs. In the light of the above, I am of a considered view that the Plaintiff established negligence against the2nd Defendant. In the case ofGuardian Royal ExchangeAssurance (Ghana) Limited v.Appiah [1984 -86] 1Ghana Law Report(GLR) 52–57at 52,the Courtheld that; 18 “where a plaintiff established that a servant was doing the job he was employed to do, the onus of rebutting the presumption that the servant was acting in the course of his employment and within the scope of his authority lay on the employer who sought to repudiate liability for any wrongful acts arising from the servant's conduct. Since O was authorised by the appellants to take the car out and wash it, it made no difference that the appellants did not authorise and would not have authorised the place, means and manner he decided to do it and would be liable for any wrongfulacts of O. Consequently,they wereliable for the negligentdrivingof O” It is therefore not the case as claimed by Counsel for the 2nd Defendant with reference to the case of Alhassan Kotokoli v. Moro Hausa & Another (1967] GLR 298 among others that if the Plaintiff could not prove that the 1st Defendant owed her a duty of care, that the 1st Defendant breached that duty of care and the breach resulted in damage to the Plaintiff, she would not succeed in her claim of vicarious liability against the 2nd Defendant. Counsel contends that the Plaintiff must also establish negligence against the 1st Defendant in order to succeed on vicarious liability against the 2nd Defendant. Since the 1st Defendant did not testify and the Plaintiff failed to pursue him, she could notestablish negligence against him nottotalk aboutvicarious liability against the 2nd Defendants. Counsel for Plaintiff with reference to the case of Attorney General &Another v. Dadey [1971] 1GLR 228 at 233 among others argued that once a defendant was doing something he was employed to do, even if he did so negligently or fraudulently the master was liable unless the servant was not doing what 19 he was employed to do. According to Counsel the 1st Defendant was acting within his scope of employment and therefore the 2nd Defendant is liable in respect of the accident involving the Plaintiff. Counsel contends that although the 1st Defendant did not testify, the Plaintiff led sufficient evidence to establish her case on the preponderance of probabilities. From the evidence proffered by the Plaintiff, the 1st Defendant was not on a frolic of his own when the accident occurred. He was doing the job that he was employed to do by the 2nd Defendant that is to drive employees of the 2nd Defendant to and from work. In the light of the above the 2nd Defendant being the employer of the 1st Defendant who committed the tortduring the course ofhis employment, is vicariously liable for the tort of the 1st Defendant. Therefore the 2nd Defendant is vicariously liable for the tort of the 1st Defendant which resulted in an accident from which the Plaintiff sustained musculoskeletalpains. ISSUE2 Whether or not the termination of the employment of the Plaintiff by the 2nd Defendantwas unlawful, improper andan abuse ofthe rulesof natural justice The Plaintiff’s evidence is that she was an employee of the 2nd Defendant Company between February 2015 and November 2019 and that her engagement by the 2nd 20 Defendant was for a fixed term contract of six (6) months as Management Assistant stationed at Berekum. The contract of engagement was executed on 1st January 2016. According to the Plaintiff, she discharged her duties to the best of her ability in the 2nd Defendant’s employ and to the 2nd Defendant’s benefit. She never breached any of the company’s regulations whilst in the employment of the 2nd Defendant. The Court did not find any record to the effect that the Plaintiff breached any of the company’s regulations. The Plaintiff claims that due to the carelessness of the 1st Defendant which led to the accident she suffered loss of blood, broken jaw, bodily pain and trauma. She listed the particularsofinjury asfollows; i) Serious bodily pain and brokenjaws ii) Cannotsit forlong iii) Loss ofblood iv) Trauma However, the documents she tendered did not confirm any of the above injuries she claimed to have suffered. The police report exhibit “B” stated that; On 5th July, 2019 at about 6:40pm. Addae Esther reported of general body pains. No bruises, cuts or fractures observed following Road TrafficAccident. She was treated for Musculoskeletal pains. 21 Exhibit “C” a medical report from National Catholic Health Service Sunyani Diocese dated 29th July, 2019 signed and stamped by Dr. Odame Amankwa which was tendered by the Plaintiff indicates that the Plaintiff who was involved in a road traffic accident sustained severe muscular skeletal pains of the chest and has reported to the hospital forreview onseveraloccasions with complains ofchest pains. The medical reportstated that she needs to be exempted from jobs that require lifting of heavy objects. The Plaintiff’sexhibit “F”amedical reportdated 30thNovember,2020statesas follows; Madam Addae who has undergone 5 previous surgeries over the past 18 years, had a 5th surgery barely 7 months ago, on account of massive ventral incisional hernia. She was hospitalized for 5 days and discharged home for subsequent scheduled outpatient reviews. Currently she is well and on routinepreventive measures againsthernialrecurrence. PREVIOUSSURGERIES  Appondicectomy –25years  1st caesarian section–19years  2nd caesarian section–16years The Plaintiff avers that she has spent not less than Ghs 7,100.00 because of the accident. Sheclaims special damagesasfollows; 22  Accident report–Ghs 100.00  Hospitalexpenses –Ghs 5,000.00  Miscellaneous expenses–Ghs 2,000.00  Total - Ghs 7,100.00 The Plaintiff further claimed that she endeavoured to inform the 2nd Defendant about her health and she brought excuse duties which was given to the 2nd Defendant. When the 2nd Defendant consistently called on her to resume duty, she petitioned the 2nd Defendant about her health but the 2nd Defendant ignored her petition, suspended her and eventually terminated her employment. According to the Plaintiff, the termination of her employment by the 2nd Defendant was unlawful, improper and an abuse of the rulesofnaturaljustice. Sheclaimed against the 1stand 2ndDefendants for;  General damages for the bodily pains, loss of blood, trauma when the 1st Defendant then in charge as a driver of vehicle with registration number GR 1805 – 13 carelessly and without due care drove the said vehicle causing an accident leading to severe bodily injurytothe Plaintiff. 23  Recovery of cash, the sum of Ghs 7,100.00 being the cost of treatment, drugs, transportation that the Plaintiff incurred in connection to the injuries that she sustained. Shefurther claimed against the 2nd Defendant alonefor;  Declaration that, the termination of the employment of the Plaintiff by the defendant wasunlawful, improperandan abuse ofthe naturaljustice rule  Generaldamagesfor unlawfulterminationofemployment.  Compensationforunlawful terminationofemployment.  Any furtherorder(s)that the honourable Courtshall deemfit.  Special damages.  Solicitor’s cost 24 Counsel for the 2nd Defendant argued that the above surgeries the Plaintiff claims she underwent as a result of the accident are not linked to the accident at all because she had them so many years ago. The recent one that was done seven (7) months ago is not linked to the accident and that none of the medical reports she tendered linked the said surgeries to the accident. Indications from the reports are that the Plaintiff attended review ofthe previous surgeries which had nothing to do withthe Road traffic accident. In fact, considering all the medical reports tendered by the Plaintiff apart from the police report and exhibit “C” which mentioned musculoskeletal pains, the rest of the reportsare medical history ofthe Plaintiff at twenty five (25) yearsago clearly unrelated to the road traffic accident. Another argument of Counsel is that although the Plaintiff alleged that she had a scan a day after the accident on 6th July, 2019 which showed that she had incisional hernia she failed to tender the said scan report. That this is a mere assertion by the Plaintiff which was not proved. Counsel noted that the Plaintiff failed to lead evidence to connect the accident to her incisional hernia while her medical report shows that she underwent five previous surgeries over the past twenty two (22) years. According to Counsel, exhibit “F” does not connect the Plaintiff’s incisional hernia to the accident. The Court confirms that the Plaintiff had three surgeries, one at twenty five (25) years which is not related to the accident. However considering the time span between the surgeries, she had the first one twenty five (25) years, the second one nineteen (19) years 25 with six years interval and the third one sixteen (16) years which is double the interval between the first two surgeries. This is an indication to the Court that her health had stabilized until 2019 that she had another surgery seven (7) months after the accident. Any reasonable man considering the trend of her surgeries would safely conclude that her recent surgery was triggered by the accident which in the Courts view is highly possible. She claims to have serious bodily pain, which the Court would not doubt because the accident report showed that she suffered from musculoskeletal pain which the WHO has explained as conditions that affect the joints, bones, muscles and multiple body areas or systems. She also claims she cannot sit for long which the Court further believes to have occurred as a result of the accident from the muscoskeletal pain. Her claim to have suffered trauma is also acceptable to the Court for being involved in an accident on a steep hill in a forest would be very traumatizing to say the least. However, her claim to have suffered a broken jaw is not reflected in any of her medical reports and also her claimofloss ofblood. On the issue of whether the Plaintiff bore her medical bills Counsel for 2nd Defendant stated that the Plaintiff failed to establish that burden. She tendered exhibit “M” series which are not related to the accident and that the said receipts were generated after the Plaintiff ceased to be an employee of the 2nd Defendant and that the said receipts failed to prove anything and therefore the said receipts lack probative value and are not relevant to this case. The Court holds acontrary view that it is not conclusive to say that 26 because exhibit “M” series were generated after the Plaintiff left the 2nd Defendant’s employment they are not related to the accident. It is confirmed that the Plaintiff suffered musculoskeletal pain which in the Court’s view may not require a one – off treatment. From the excuse duties and medical reports tendered apart from the surgeries that were held long ago and as I stated earlier the recent one is a possible trigger from the accident although not stated in her reports by the doctors. In that regard I have no reason to doubt exhibit “M” series although they were generated after the Plaintiff left the 2nd Defendant’s employment. I am convinced that those are legitimate expensesthe Plaintiff incurred. Counsel contends that the 2nd Defendant tendered exhibit “5” an insurance utilization report for the Plaintiff from 5th July, 2019 to 21st January, 2020 to show that while the Plaintiff was a staff of the 2nd Defendant, she benefitted from the 2nd Defendant’s medical insurance policy and that the Plaintiff’s medical bills relating to the accident were borne by the 2nd Defendant. This is true and the Court confirms same. The Court however holds the view that the Plaintiff bore further expenses after that on her health which relates to the accident taking into consideration her musculoskeletal condition. The Court confirms that the medical report the Plaintiff tendered to prove her case did not link her surgeries to the accident as rightly argued by Counsel for 2nd Defendant. However, the musculoskeletal pain which was established in the accident report was 27 repeated in her exhibit “C” which indicates that the Plaintiff is suffering from chest pains which fromtheevidence onrecord is related totheaccident. Regarding whether or not the termination of employment of the Plaintiff is unlawful, improper and an abuse of the natural justice rule, relying on the case of CharlesAffram vs. SG-SSB, Suit No. J4/71/2018 dated 21st March, 2019 Counsel for the 2nd Defendant argued that for a claim of wrongful/unlawful termination of employment, it is essential for the Plaintiff to prove the terms of employment and then prove that the termination of employment is in breach of the terms of his agreement or that the termination is in contravention of a statutory provision for the time being regulating his employment. Counselsubmitted with the case ofKrobea &Others vs. Tema Oil Refinery[2003 – 2004] Supreme Court of Ghana Law Report (SCGLR) 1033 and noted that at common law the employer and employee are free and equal parties who could terminate the contract of employment in accordance with the terms of contract. The employer could terminate the employee’s contract by giving due notice to the employee and by paying the employee’s wages in lieu of notice. The employer is not obliged to give notice of the termination. Counsel contends that after the accident occurred on a vehicle with registration number GR 1805 being driven by the 1st Defendant, the 2nd Defendant’s employee the 2nd Defendant’s staff on the vehicle were taken to the Holy Family Hospital Berekum and they were treated and discharged. Subsequently the Plaintiff’s attendance to work was 28 intermittent without any reasonable excuse and the Plaintiff was not declared by any qualified medical officer as being unable to work. Counsel contends that the Plaintiff was paid her due before her appointment was terminated and she accepted the money withoutany complaint. To determine this issue the Court must first establish the terms of contract between the Plaintiff and the 2nd Defendant. The termsof contract was executed betweenthe Plaintiff and the 2nd Defendant on the 1st day of January 2016. The Plaintiff was engaged as ManagementAssistant with her duties spelt out as monitoring activities, leading teams, fire duties, administration, demarcation and activity written reportand any other duties that will be assigned to her not exceeding her competence and capacities. The mutual agreement betweenthe parties include; 6.1.2 This agreement may be terminated by either party giving three months prior notice in writingto the party entitledto the notice or three months’salary inlieuof notice. Pursuant to paragraph 6.1.2 of the Plaintiff’s contract of employment the 2nd Defendant by a termination letter exhibit “7” dated 25th November, 2019, terminated the Plaintiff’s appointment and calculated all her benefits including her salary from November 2019 to February 2020. Her leave entitlements for 2019, 2020 were also calculated and paid. Per exhibit “7” the Plaintiff was paid a total of Five Thousand, Nine Hundred and 29 Seventy Nine Cedis, Six pesewas (Ghs 5,979.06) which was paid into her bank account and she signed forit. She confirmed during theproceedings thatshe has beenpaid. The Court takes notice that the contract of employment of the Plaintiff states that any of the parties could terminate the contract at any time which is in tandem with the Labour Act. The Court takes further notice that the 2nd Defendant paid the Plaintiff her three months’ salary in lieu of notice which is also in accordance with the contract and in accordance withthe LabourAct. The Courtacknowledges the fact that after the accident the Plaintiff has stayed at home for a while but that cannot be termed absence from duty without reasonable excuse as claimed by Counsel for the 2nd Defendant because the Plaintiff communicated her reason for being absent from work on her excuse duties to justify her absence. In exhibit “3” a letter dated 7th November, 2019 written to the Plaintiff by the 2ndDefendant, it statesas follows; You are appointed as a management assistant and should perform your duties as a supervisor to ateam appointed to you. Should you refuse such an instruction or not perform your duty, it is seen as gross misconduct, whichwill be addressedthrough the disciplinary code and may lead todismissal. Itrustyou understand the seriousnessof the situation Disciplinary code is normally applied by giving a defaulting person a hearing which did not happen in this case. The Court holds the view that although the 2nd Defendant 30 in the above letter referred to disciplinary code it did not give the Plaintiff a hearing on her last lettertothe 2ndDefendant praying for time totreatherself. The wayand manner in which the Plaintiff’semployment was terminated is like to say good riddance to her.I acknowledge Counsel for Defendant’s argument that although the 2nd Defendant offered to take the Plaintiff to hospital in its car she turned down the offer which is unfortunate. Although I do not totally agree with the Plaintiff on the excuse duties, at least she furnished the 2nd Defendant with them indicating that she is not well and thereforethe warning and calls onher toresume duty appeared nottobe unheeded to. The Court is of the view that the Plaintiff having given notice of her absence to the 2nd Defendant with excuse duties the 2nd Defendant could have made arrangements for the Plaintiff to recover fully since the accident occurred during her course of employment with the 2nd Defendant and due to the Defendant’s negligence as established by the Court. Upon being notified to resume duty she wrote to the 2nd Defendant to give her time to recover.Just after that her appointment was terminated without being given any response on her letter. On that score the Court holds the view that the timing of the termination of the Plaintiff’s appointment was not good especially when she had an accident during the course of her work. It is therefore unlawful, improper and contrary to the rules of natural justice as claimed by the Plaintiff for her appointment to be terminated that way. The 2nd Defendant in this regard is an administrative official or bodywho is expectedunder articles 23and 296oftheConstitution toact fairly. 31 Sections 15 (a), 17 (1) (a), (b), (c), (2), (3) and (4) and 18 (1) (a), (b), and (c) of the Labour ACT,2003(ACT651) provides that; 15.Groundsfor termination ofemployment Acontractof employmentmay be terminated, (a) by mutual agreementbetween the employerand the worker; 17.Noticeoftermination ofemployment (1) A contract of employment may be terminated at any time by either party giving to the other party, (a) in the case of a contract of three years or more, one month’s notice or one month’s pay in lieu of notice; (b) in the case of a contractof less than three years, two weeks’ notice or two weeks’ pay in lieuof notice;or (c)inthe case of contractfrom weekto week, sevendays’ notice. (2) A contract of employment determinable at will by either party may be terminated at the close of any day without notice. (3)A noticerequired tobe given underthis sectionshall be in writing. 32 (4)The day on which the notice isgivenshall be included inthe period of the notice. 18.Remunerationon terminationofemployment (1) When a contract of employment is terminated in the manner stated in section 15, the employer shallpay tothe worker, (a) the remuneration earned by the worker before the termination; (b)the deferredpay dueto the worker before the termination; As stated earlier the 2nd Defendant complied with the Plaintiff’s contract of employment and the Labour Act but violated articles 23 and 296 of the 1992 Constitution by not acting fairly. Article 23ofthe 1992Constitution Administrative bodies and administrative officials shall act fairly and reasonably and comply with the requirements imposed on them by law and persons aggrieved by the exercise of such acts and decisionsshall have the rightto seekredress beforea courtor other tribunal. Article 296ofthe 1992Constitution Where in this Constitution or in any other law discretionary power is vested in any person or authority - 33 (a) that discretionary power shall be deemed toimplya duty tobe fairand candid; (b) the exercise of the discretionary power shall not be arbitrary, capricious or biased either by resentment, prejudice or personal dislikeand shall be in accordancewith dueprocess of law; In the light of the above, the Court holds the view that the 2nd Defendant did not exercise its discretion well in terminating the appointment of the Plaintiff. If the termination were done a year or two after the accident that might be fair. Counsel for Plaintiff argued that the 2nd Defendant was not fair minded in terminating the Plaintiff’s appointment. His reasons are that there was an accident a fact that is not denied, the Plaintiff was involved in the said accident, that the vehicle involved in the said accident belongs to the 2nd Defendant, that the Plaintiff was involved in the accident when she was going to work as an employee of the 2nd Defendant company which is an undeniable fact which the 2nd Defendant has not challenged. Considering the above facts Counsel argued that the suit should not have been challenged at all by the 2nd Defendant but should have been amicably resolved outside Court. I agree with Counsel for Plaintiff that considering the facts and evidence leading to the termination of the Plaintiff’s employment, the2nd Defendants have not dealt fairly with her. In the light of the forgoing, I hereby conclude that the termination of employment of the Plaintiff is unlawful, improper and contrary to the rules of natural justice as claimed by the Plaintiff 34 In the light of the foregoing the Court is of a maximum conviction that the Plaintiff is entitled toall herclaims against the 2nd Defendant. In the case of Kubi & Others vs. Dali [1984 – 86] Ghana Law Report 501 – 510 the Court held that; (1) special damages in the sense of a monetary loss which the plaintiff had sustained up to the date of the trial must be pleaded and particularised and then proved by admissible evidence otherwise it could notbe recovered. In the instantcase, the plaintiff hadset out particulars of her special damages in conformity with the requirement of pleadings. Given the circumstances of the case, the production of receipts at the trial would not be the only legitimate means of proving special damages. There was no doubt that the plaintiff had spent money on the items particularised under the special damages and she had led cogent evidence to that effect. The plaintiff clearly indicated that she had no receipts for some of the items and the court was therefore entitled to accept secondary evidence as given by the plaintiff. In respect of those she was not given receipts for, it was again a question of fact as to whether or not those expenses were incurred. Since there was a basis for the trial judge’s finding that the plaintiff’s actual expenses came to ¢5,500 it would not be right for the Court of Appeal to disturb it. Ilkiw v. Samuels[1963]2All E.R. 879,C.A. cited. In the case of Klah v. Phoenix Insurance Company Limited [2012] SCGLR 1139 at 1142. The Courtheld in holding (3)as follows; 35 There was a distinction between general and special damages; for whereas general damages would arise by inference of law and therefore unnecessary to be proved by evidence, special damages representing a loss which the law would not presume to be the consequence of the defendant’s act but would depend in part, on the special circumstances, must therefore be claimed on the pleadings and particularized to show the nature and extent of the damages claimed. The plaintiff must go further to prove by evidence that the loss alleged had been incurred and thatit was the directresultof the defendant’s conduct. I take notice that because of ill health the Plaintiff could not take steps to mitigate her loss. In the light of the foregoing, I hold the view that the Plaintiff is entitled to general damages as well as special damages because she pleaded, particularized and proved special damagesby wayofreceipts ofexpensesincurred for hermedical treatment. PLAINTIFF’S RELIEFS a. I hereby award general damages of Ten Thousand Ghana Cedis (Ghs 10,000.00) to the Plaintiff against the 2ndDefendant. b. I further order in favour of the Plaintiff (special damages) for recovery of Five Thousand, One Hundred Ghana Cedis (Ghs 5,100.00) from the 2nd Defendant being 36 the cost of treatment, drugs, transportation that the Plaintiff incurred in connection with injuries that she sustained instead of Seven Thousand, One Hundred Ghana Cedis (Ghs 7,100.00)claimed by the Plaintiff. c. I hereby declare that the termination of employment of the Plaintiff by the 2nd Defendant was unlawful, improperand anabuse oftherules ofnaturaljustice d. General damages for unlawful termination of employment. (This relief is captured in relief (a) so I will exclude it) e. I award the Plaintiff compensation of Fifty Thousand Ghana Cedis (Ghs 50,000.00) for unlawfulterminationofthe Plaintiff’semployment. f. Special damages. No award of special damages since I have awarded the Plaintiff Five Thousand, One Hundred Ghana Cedis (Ghs 5,100.00) as special damages in relief (b). g. Cost of Twenty Thousand Ghana Cedis (Ghs 20,000.00) is awarded in favour of the Plaintiff. (SGD) 37 JUSTICEJOYCE BOAHEN HIGHCOURTJUDGE 2NDDECEMBER2024 38