LAGAH AND ANOTHER VRS. BOATENG AND ANOTHER (E8/03/2016) [2024] GHAHC 175 (18 June 2024)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT ‘B’ HELD IN TEMA IN THE GREATER ACCTRA REGION OF THE REPUBLIC OF GHANA BEFORE HER LADYSHIP JUSTICE PATRICIA QUANSAH (JUSTICE OF THE HIGH COURT) ON TUESDAY THE 18TH OF JUNE 2024. SUIT NO. E8/03/2016 1. ROSE LAGAH 2. SAMUEL AZAMETI PLAINTIFFS ALL OF H/NO. KNT 1/13 KWAMOSO - AKWAPIM VRS 1. LORD JEFFERY BOATENG CORRIANDA CLOSE COMMUNITY 20 TEMA DEFENDANTS 2. REBECCA YAKAH HOUSE NO C6/16/9 COMMUNITY 6 JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 1 TEMA PLAINTIFFS PRESENT 1ST DEFENDANT ABSENT 2ND DEFENDANT PRESENT ________________________________________________________________ JUDGMENT 1. FACTS OF THE PLAINTIFF’S CASE [i] In their statement of claim and which was subsequently amended, the Plaintiffs contended that they are the Administrators of the Estate of Etse Azumah (deceased), who died as a result of a road traffic accident that occurred on the 23rd of April 2012 at about 3:40 am. According to the Plaintiffs, it later came to their attention that the 1st Defendant was in charge of vehicle with registration no. GS 7110-10 that run down the deceased, Etse Azumah on the said 23rd of April 2023, causing his death. At the time, the deceased was said to be 25 years old but unmarried and with one child. He was also an Electrical Contractor involved in the installation and repair of plants and was said to have earned between GH¢3,500.00 and JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 2 Gh¢4,800.00 per month, on the average. The deceased was further said to be the sole bread winner of his family prior to his death. [ii] On or about the 23rd of April 2012 at about 3:40am, the deceased was said to be distilling a gutter when the 1st Defendant, who was driving from Tema Community 18, Lashibi veered off his lane and ran down the deceased when he reached a spot near Faith Evangelical Church at Community 10. The deceased was again said to have died on the spot and his body was conveyed to the Tema General Hospital, Tema. The Plaintiffs added that the accident occurred as a result of the negligent driving of the 1st Defendant and the Plaintiffs particularised the negligence of the 1st Defendant as follows: 3. PARTICULARS OF NEGLIGENCE a. He failed to exercise due care and attention. b. He failed to make any proper look out. c. He failed to apply his brakes, slow down or swerve his vehicle so as to avoid knocking down the deceased. d. He drove too fast in the circumstance. [iii] The Plaintiffs continued to state that even though the 1st Defendant clearly caused the accident that resulted in the death of Etse Azumah, since the 2nd Defendant was the owner of the vehicle driven by the 1st Defendant at the time of the accident, the 2nd Defendant was jointly and severally liable for the accident and its resultant outcome. Also, the deceased suffered pain before his death and the Plaintiffs again incurred expenses as a result of the death. The JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 3 Plaintiffs thus claimed the following, jointly and severally against the two Defendants: [iv] SPECIAL DAMAGES GH¢ Ambulance fee - 300.00 Mortuary fee - 200.00 Coffin - 300.00 Shroud - 100.00 Undertaker - 300.00 Transport expenses - 500.00 Other Testamentary expenses - 1000.00 [v] The deceased left behind his eight-year-old child and his mother who both depended on the deceased for their livelihood and therefore the two lost this dependency. Since the deceased was also only 25 years when he died, his death had occasioned loss of years of purchase or loss of life expectancy. The Plaintiffs therefore claimed against the Defendants, jointly and severally, the following reliefs: 4. PLAINTIFFS’ RELIEFS SOUGHT 1. The special damages as endorsed above JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 4 2. General damages for a. Loss of dependency b. Loss of future income c. Pain and suffering d. Loss of life expectancy or years of purchase 5. AMENDED STATEMENT OF DEFENCE [vi] The 1st Defendant never appeared in Court and neither did he make a defence for himself. Only the 2nd Defendant did and in a terse 7-paragraph statement of defence and which was amended subsequently, the 2nd Defendant denied all the averments stated in the Plaintiffs’ statement of claim and further denied that she was the owner of the vehicle with registration no. GS 7110 - 10. The 2nd Defendant further denied all liability against her and also denied that she was vicariously liable for the death of the deceased; contending that she did not know the 1st Defendant and neither was the 1st Defendant her employee. [vii] According to the 2nd Defendant, the 1st Defendant had also never been under the control of the 2nd Defendant in the course of his employment or business; and further that the 1st Defendant was not even known to the 2nd Defendant. The 2nd Defendant thus stated that the Plaintiffs were not entitled to the reliefs they sought as the 2nd Defendant cannot be held jointly and severally liable with the 1st Defendant for the sins of the 1st Defendant. JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 5 6. PLAINTIFFS’ REPLY TO THE 2ND DEFENDANT’S DEFENCE [viii] The Plaintiffs, in their Reply, joined issues with the 2nd Defendant on her statement of defence except when same consisted of admissions; adding that at the time the accident occurred, the 2nd Defendant accepted responsibility on behalf of the 1st Defendant and contributed towards the burial and funeral of the late Etse Azumah who died as a result of the accident. [ix] The Plaintiffs additionally stated that the 1st Defendant was the driver at the time of the accident and so if the 1st Defendant was not the servant of the 2nd Defendant and was also not under the control of the 2nd Defendant, the 2nd Defendant would not have assumed the responsibility of contributing towards the burial and funeral of the late Etse Azumah whose death was caused by the 1st Defendant. Per the Plaintiffs, by that singular act, the 2nd Defendant demonstrated that she was vicariously liable for the acts of the 1st Defendant and added that they shall put the 2nd Defendant to strict proof regarding her liability. The Plaintiffs reiterated that they were entitled to the reliefs they sought against the Defendants. Pleadings closed thereafter. 7. APPLICATION FOR DIRECTIONS [x] At the Application for Directions stage, the following issues were set down for the trial: JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 6 a. Whether or not the accident occurred as result of the negligence of the 1st Defendant. b. Whether the deceased died as a result of the said accident. c. Whether or not the 2nd Defendant is the owner of vehicle with registration number GS 7110-10 and therefore the master or employer of the 1st Defendant. d. Whether or not the 2nd Defendant is vicariously liable for the negligence of the 1st Defendant. e. Whether or not the Plaintiffs are entitled to their reliefs. f. Any other issue arising out of the pleadings The parties were then ordered to file their respective witness statements and they did. 8. WITNESS STATEMENTS OF THE PLAINTIFFS AND THEIR WITNESSES [xi] The 2nd Plaintiff testified for and on behalf of the 1st Plaintiff and reiterated that the Plaintiffs were the Administrators of the estate of the deceased of Etse Azumah. A copy of the Letters of Administration obtained was tendered in evidence as Exhibit A. The 2nd Plaintiff further repeated the averments in their JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 7 statement of claim on how the deceased lost his life after being ran over by a vehicle which was said to belong to the 2nd Defendant but was driven by the 1st Defendant at the time. The 2nd Plaintiff further repeated the averment that at the time of his death, the deceased worked as an Electrical Contractor and earned, on the average, between Gh¢3,500.00 and Gh¢4,800.00 each month and so his death has resulted in the loss of earnings for his dependants. [xii] P2 also informed the Court that a post-mortem examination of the deceased revealed that the deceased died as a result of head injury sustained from the accident; and this accident was caused by the negligence of the 1st Defendant. A copy of the post-mortem report was thus attached as Exhibit B. Per the 2nd Plaintiff, the 1st Defendant was negligent because he was driving in town and at the hour the accident occurred, i.e. 3:40am, the 1st Defendant was expected to pay due care and attention to other road users and pedestrians alike. He was further expected to observe a proper look out, to drive within speed limit, slow down and also to apply his brakes, swerve his vehicle so as to avoid knocking the deceased. All these the 1st Defendant failed to do. The death of the deceased was wholly caused by the 1st Defendant, the 2nd Plaintiff contended. [xiii] The 1st Defendant was also the servant of the 2nd Defendant and therefore the 2nd Defendant is vicariously liable for the negligence of the 1st Defendant. P2 stated that the 2nd Defendant in her statement of defence denied that she never knew the 1st Defendant and never engaged him to drive the said vehicle. However, she never denied that she is the owner of the said vehicle. Further, when the deceased passed away, the 2nd Defendant who denied ever engaging JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 8 the 1st Defendant accepted responsibility on behalf of the 1st Defendant and contributed towards the burial and funeral of the late Etse Azumah. [xiv] The 2nd Plaintiff additionally tendered in evidence the Police Report on the accident, which was admitted and marked as Exhibit C, and per the 2nd Plaintiff, therein, the owner of the vehicle being driven by the 1st Defendant at the time of the accident, with registration number GS 7110-10, was said to belong to the 2nd Defendant herein. From the above, the 2nd Defendant ought to be held vicariously liable or responsible for the acts of the 1st Defendant, the 2nd Plaintiff added. [xv] P2 then tendered in evidence receipts covering some of the expenses incurred and which had been narrated under special damages as Exhibit D series; and prayed for the award of special damages. The 2nd Plaintiff added that the deceased left behind a child and a mother; and his untimely death at the age of 25 years has resulted in the loss of life expectancy and loss of years of purchase. The death of the deceased has also deprived his mother and his child their main source of livelihood since they depended solely on the deceased. The Plaintiffs were thus entitled to the reliefs endorsed on the writ of summons and as such, the Defendants were jointly and severally liable for the death of the deceased and all its consequences. The 2nd Plaintiff thereafter filed a supplementary witness statement, stating that the initial police report misquoted the registration of the 2nd Defendant’s vehicle and so among others, a new report was tendered in evidence. The 2nd Plaintiff further attached reports of searches conducted at DVLA, in seeking to establish the ownership of the vehicle in the 2nd Defendant herein. JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 9 [xvi] PW1 was said to be a relative of the deceased and he informed the Court that at dawn on the 23rd of April 2012, the deceased was distilling the gutter outside their house when he heard a loud noise. PW1 stated he rushed outside to see that the 1st Defendant had knocked down the deceased in front of their house. PW1 stated that he quickly reported to the police, who came to the scene and the deceased was taken to the Tema General Hospital but was pronounced dead. The 1st Defendant, who was still at the scene was also taken to the Police Station and PW1 stated that there, it was discovered that the 1st Defendant was drunk. According to the PW1, the 2nd Defendant then came to the Police station and requested for bail for the 1st Defendant. The 2nd Defendant was then said to have taken PW1 and his father to her residence and she later contributed an amount of GH¢2,000.00 to the funeral of the deceased, Etse Azumah. [xvii] The Plaintiffs’ Counsel subsequently filed a motion to cause a subpoena to be issued to compel an officer from DVLA to testify as PW2 and to produce some documents before the Court. PW2, Robert Kwaku Asafo, stated he was a Senior Technician Engineer at DVLA and he informed the Court that the Plaintiff applied for an official search on vehicle with registration number GS 7110 – 10, which was the vehicle driven by the 1st defendant when it ran down the deceased. PW1 thus tendered in evidence copies of the search reports as Exhibits E and E1. PW2 then categorically informed the Court that though the vehicle in question had gone through several transfers to various individuals, between the 22nd of August 2011 and the 5th of December 2012, the 2nd Defendant herein was the named owner of the vehicle, in the records of DVLA, before it was transferred to one Azuma Ruby Doe. JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 10 The Plaintiffs closed their case after the brief cross-examination of PW2 and called no other witness. 9. WITNESS STATEMENT OF THE 2ND DEFENDANT [xviii] The Plaintiffs obtained default judgment against the 1st Defendant, who did not participate in the trial at all. The Defendant thus testified for herself and as per her pleadings, she consistently denied any liability for the death of the deceased. She added that contrary to the testimony of the 2nd plaintiff, she never accepted responsibility of the said accident and neither did she participate nor contribute, either in kind or in cash to the burial and funeral of the deceased. [xix] The 2nd Defendant continued to state that the 1st Defendant was not known to her, she had never seen the 1st Defendant and neither was the 1st Defendant her employee. The vehicle in question did not also belong to the 2nd Defendant at the time of the accident and it was also not under her control and so she could not be held vicariously liable for the accident said to have been caused. The 2nd Defendant concluded by stating that according to one of the Plaintiffs’ witnesses, the deceased was drunk at the time of the accident and the accident may have been caused due to his drunkenness and so the 2nd Defendant cannot be liable for his drunkenness whilst driving. [xx] This averment above is however inconsistent with the facts on record because it is clear that the deceased was not the one driving. He was said to be desilting a gutter when he was knocked down by the vehicle being driven by the 1st Defendant; and so I am not sure that averment is wholly correct in the entire scheme of events in this case. JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 11 The 2nd Defendant called no witness and closed her case after cross- examination. 10. THE LAW ON THE INCIDENCE OF THE BURDEN OF PROOF IN CIVIL CASES [xxi] The Evidence Act, 1975, NRCD 323, section 12 in relation to civil cases provides that he who avers must prove; and same was confirmed in the case of Lamptey alias Nkpa v Fanyie & Others [1989-90] 1 GLR 286 to the effect that “On general principles, it was the duty of a plaintiff to prove his case.” The Supreme Court, further, by a majority decision in the case of BISI AND OTHERS v. TABIRI ALIAS ASARE [1987-88] 1 GLR 360-413 held; per Osei- Hwere J.A. that The standard of proof required of a plaintiff in a civil action was to lead such evidence as would tilt in his favour the balance of probabilities on the particular issue. The demand for strict proof of pleadings had however never been taken to call for an inflexible proof either beyond reasonable doubt or with mathematical exactitude or with such precision as would fit a jig-saw puzzle. Preponderance of evidence became the trier's belief in the preponderance of probability. JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 12 [xxii] The learned authors of Halsbury’s Laws of England, Volume 17 at paragraph 14 of page 11 on the “Incidence of the legal burden” wrote: “The legal burden of proof normally rests upon the party desiring the court to take action, thus a claimant must satisfy the tribunal that the conditions which entitle him to an award have been satisfied. In respect of a particular allegation, the burden lies upon the party for whom the substantiation of that particular allegation is an essential of his case.” But in the case of Bank of West Africa Ltd. v Ackun [1963] 1 GLR 176 – 182, S.C., Sarkodee – Addo JSC stated: … But the burden frequently shifts, as the case proceeds, from the person on whom it rested at first to his opponent. This occurs whenever a prima facie case has been established on any issue of fact or whenever a rebuttable presumption of law has arisen. . . The issue must be proved by the party who alleges the affirmative in substance, and not merely the affirmative in form." Section 11(4) of the Evidence Act, 1975, NRCD 323 explains the burden of proof in civil cases as follows: “In other circumstances, the burden of producing evidence requires a party to produce sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.” JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 13 11. EVIDENCE ADDUCED AT THE TRIAL AND THE LAW [xxiii] From the pleadings and the evidence on record, the following are not disputed: that the deceased, Etse Azumah died on the 23rd of April 2012 after he was run down by a vehicle. There was proof of death and the cause of death, from the post-mortem report and the police accident report tendered in evidence by the Plaintiffs and their witness. The vehicle involved in the accident that killed the deceased, with registration number GS 7110 – 10, was said to have been driven by the 1st Defendant and I find that it is undisputed that the 1st Defendant was the driver of the vehicle in question. The 1st Defendant never appeared before this Court to make a defence for himself; and so the presumption indeed remains that he was in charge of vehicle number GS 7110-10 at the time the accident occurred on the 23rd of April 2012 and negligently caused the death of the deceased. [xxiv] From the evidence adduced before this Court also, there is again no doubt in my mind that at the time of the accident on the 23rd of April 2012, the 2nd Defendant herein was the owner of the vehicle with registration number GS 7110 – 10 in the records of DVLA. This fact was confirmed by PW2, the officer from DVLA who appeared before the Court and tendered in evidence DVLA transfer documents and invoices to establish that as at the material date of the 23rd April 2012, the 2nd Defendant was the owner of the vehicle. [xxv] It also appears that the 2nd Defendant only transferred the car to another after the 23rd of April 2012, because from the documentary proof before this Court, JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 14 it is obvious that from the 22nd of August 2011 to the 5th of December 2012, the vehicle in question was in the name of the 2nd Defendant herein. Therefore, the documents tendered in evidence by the 2nd Plaintiff and PW1 as well as the evidence adduced all point to the fact that at the time of the accident, the 2nd Defendant was the owner of the vehicle being driven by the 1st Defendant. [xxvi] The Defendant vehemently disputed those assertions and denied that she was the owner of the vehicle no. GS 7110 – 10 in her defence; but she subsequently admitted she was the owner of the said vehicle under cross-examination. Having so established, there are other legal issues arising thereto and so this Court ought to evaluate and analyse the evidence adduced to arrive at a reasonable conclusion. In that regard, I proceed to deal with the issues set down for the trial as follows: 12. ISSUES 1 AND 2 - Whether or not the accident occurred as result of the negligence of the 1st Defendant. - Whether the deceased died as a result of the said accident. [xxvii] There is no doubt that there was a death and the 2nd Defendant tendered in evidence the post-mortem report and the receipts for the mortuary fees and JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 15 shroud, in the name of one Etse Azumah, who was said to have died after being run down by the vehicle driven by the 1st Defendant. There is thus overwhelming evidence to establish that the said Etse Azumah died, there being no iota of evidence adduced to contradict this fact. It is also in respect of the death of the said Este Azumah that the Plaintiffs have instituted this action and so I find as a matter of fact that the deceased died as a result of the accident, from the post-mortem report tendered in evidence and which was not objected to. [xxviii] Again, the 1st Defendant never appeared in Court to make a defence for himself; and the 2nd Defendant was also clearly not present when the accident occurred. Further, the 2nd Defendant consistently denied that the 1st Defendant was ever her employee and so there being no explanation for the cause of the accident, the presumption is that the accident was caused by the negligence of the 1st Defendant driver. Ordinarily, a car driving on the road ought not to ran over a pedestrian desilting a gutter at the side of the road, but the vehicle being driven by the 1st Defendant did ran over and actually did kill the deceased; and so in the absence of any reasonable explanation as to the cause of the accident, the presumption is that the 1st Defendant negligently caused the accident that resulted in the death of the deceased. [xxix] The Plaintiffs averred that the 1st Defendant failed to exercise due care and attention, he failed to make any proper look out, he even failed to apply his brakes, slow down or swerve his vehicle so as to avoid knocking down the deceased, such that in the general circumstances of the events which unfolded, the 1st Defendant appeared to have driven too fast. Once again, there was no iota of evidence adduced to contradict the above because the 1st Defendant driver never appeared before the Court. JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 16 [xxx] In the case of Ansah vrs Busanga [1976] 2 GLR 488-500; also known as the Busanga case, the Court of Appeal per Anin J.A. held: “As far as the second defendant is concerned, it is indisputable that he admitted his own negligence and liability to the action … by his default in not entering appearance to the action and by allowing interlocutory judgment to be signed against him in default of pleading.” The Court further held: “In my opinion, the mere happening of the fatal accident, unexplained, coupled with the plaintiff’s observation of the vehicle lying in the bush by the roadside—where it had no business to be if it was being driven with due care and skill—raises a presumption of negligence on the well- known principle of res ipsa loquitur and the burden of displacing this presumption was on both defendants, i.e. on the driver and his master, assuming, for the moment, that the relationship of master and servant and driving in due course of employment were also established.” [xxxi] Erle C.J. in the case of Scott vrs London and St. Katherine Docks Co. [1861-73] All E.R. 246 at 248 (said to have been applied in the majority of Ghanaian cases on the maxim, res ipsa loquitur, for instance, Aboaku vrs Tetteh [1962] 2 GLR 165; Yirenkyi v. Tarzan International Transport [1962] 1 GLR 75 etc.) it was held that Where a: “thing is shown to be under the management of the defendant, or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management of the JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 17 machinery use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.” In the instant case, the 1st Defendant, who clearly was in charge of the vehicle at the time of the accident did not proffer any explanation as to how the accident occurred, especially where the accident was such that it resulted in death. Relying on the above and the doctrine of res ipsa loquitor, I hold that a prima facie case of negligence has been established against the 1st Defendant herein and I further hold that the 1st Defendant herein negligently caused the accident that resulted in the death of Etse Azumah. Having made the above findings, I proceed to deal with the following issues: 13. ISSUES 3 AND 4 - Whether or not the 2nd Defendant is the owner of vehicle with registration number GS 7110-10 and therefore the master or employer of the 1st Defendant. - Whether or not the 2nd Defendant is vicariously liable for the negligence of the 1st Defendant. [xxxii] As earlier established, I find from the overwhelming evidence adduced by the Plaintiffs and their witnesses that the 2nd Defendant was the owner of the vehicle in question at the time of the accident on the 23rd of April 2012. JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 18 The 2nd Defendant, also, having initially denied that she was the owner of the vehicle in her pleadings now admitted that she was, under cross-examination as follows: Q: Between 28th of August 2011 and 5th December 2012, you were the owner of Toyota Corolla salon car with registration number GS 7110 -10, not so? A: Yes, my Lady, I was the owner. There is therefore no doubt whatsoever in my mind that the vehicle in question, at the time of the accident, belonged to the 2nd Defendant herein. Having so established above, the presumption arising therefrom is that the 2nd Defendant was aware of whoever was driving her vehicle and also that she authorised the person so to do or otherwise. Plainly put, the presumption that arises is that the 2nd Defendant was the ‘master’ or employer of the 1st Defendant herein. In seeking to further establish that the 2nd Defendant was the employer of the 1st, the 2nd Plaintiff and PW1 under cross examination confirmed that the 2nd Defendant accepted that the 1st Defendant had caused the death of the deceased and thus contributed and participated in the funeral of the deceased. PW1 gave the answers below whilst being cross-examined by the 2nd Defendant’s Counsel: Q: Now you also told this Court in paragraph 11 of your witness statement that the 2nd Defendant took you and your father to see where she was living; I am putting it to you that it is not true. A: That is not true. JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 19 Q: I am also putting it to you that your statement that the 2nd Defendant lives near SOS is not true. A: That is not correct. Q: I am also putting it to you that your evidence that the 2nd Defendant contributed an amount of GH¢2,000.00 towards the burial and funeral of the deceased is not true. A: That is not correct. Q: Now your evidence that the 2nd Defendant participated in the planning of the funeral and burial of the deceased is not true. A: That is not correct. Q: I am putting it to you further that the 2nd Defendant became aware of this accident only after this writ was issued in this court. A: That is not correct. The 2nd Plaintiff equally gave the answers below under cross-examination: Q: In your witness statement you stated that the 2nd Defendant contributed towards the burial of Etse Azumah. A: Yes, my Lord. JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 20 Q: Who did the 2nd Defendant pay the money to? A: She gave it to the family, it was collected by one Jacob Azumah. Q: I am putting it to you that neither you nor any member of your family was paid anything by the 2nd Defendant. A: That is not correct. Q: Were you present when the money was being paid? A: No, but Jacob Azumah collected the money on behalf of the family. Q: Was the 1st Defendant present? A: I cannot tell. Q: 2nd Defendant did not pay any money to Jacob Azumah, I am putting it to you. A: That is not correct. [xxxiii] The 2nd Defendant vehemently denied same and from the ample evidence adduced, documentary and otherwise, against the 2nd Defendant herein, the burden shifted onto the 2nd Defendant to adduce evidence to rebut, contradict and dispute the evidence that she was the ‘master’ of the 1st Defendant; and/or that she contributed to the funeral of the deceased. JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 21 The 2nd Defendant in seeking to so establish proceeded to deny any relationship with the 1st Defendant as follows: Q: During this period of 28th August 2011 to 5th December 2012, were you driving the vehicle in question yourself? A: No, my Lord. Q: Who was your driver? A: My driver was Ebo Benjamin Arthur and my driver is still Ebo Benjamin Arthur. Q: Where were you parking your car at the end of the day? A: The car was not with me since the day I bought it. Q: So where was the car parked at the end of the day? A: With a friend by name Dora Apare. (Emphasis is mine) Q: So any time the vehicle is used, you were aware or you gave your consent before the car was moved? A: I have no idea, my Lord. Q: This your friend, what was your relationship with the said Dora Apare? JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 22 A: She was a mutual friend, my Lord. Q: And she was aware of whoever was moving the vehicle at any point in time not so? A: Yes, my Lord. (Emphasis is mine} Q: Now on the 23rd April 2012, at about 3:40 am, where was your vehicle? A: I have no idea, my Lord. Q: Who was driving the vehicle at that time, are you aware? A: No my Lord, I am not aware. Q: Take a look at Exhibit ‘C’. Exhibit ‘C’ is the Police report, is that the case? A: It is a Police report, my Lord. Q: Paragraph 1 of Exhibit ’C’ is the date and time of the accident, not so? A: Yes, my Lord. Q: And paragraph 2 also shows the place of the accident. JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 23 A: My Lord I don’t know where that place is. Q: And paragraph 5 shows the name of the driver who was driving the vehicle at the time. A: Yes, my Lord. Q: And your trusted friend was at all material times aware of the people who were moving the vehicle which was parked with her, not so? A: I have no idea, my Lord. Q: So this Jeffery Boateng you claim you do not know, moved your vehicle on the 23rd April 2012 apparently with the permission of your trusted friend. A: I have no idea, my Lord. [xxxiv] Apart from the above answers, the 2nd Defendant herein did not adduce any evidence whatsoever to establish that she was not the ‘master’ or employer of the 1st Defendant, having found as a matter of fact that the vehicle belonged to the 2nd Defendant. Further, as submitted by the Plaintiff’s Counsel in his written address, the said friend of the 2nd Defendant, the said Dora Apare, was never produced before this Court. Indeed, neither was any other evidence adduced to establish satisfactorily to the Court that even though the 2nd Defendant was the owner of the vehicle being driven by the 1st Defendant at the time of the accident, she had no master JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 24 servant relationship with the 1st Defendant, in view of the depth of evidence put forth by the Plaintiffs herein. [xxxv] Additionally, none of the parties informed the Court whether at the material time, the vehicle was in use as a commercial vehicle or not, but it is unfathomable for anyone to purchase a vehicle, whether for commercial use or not and state she gave the vehicle to a friend and is thus not aware of anything to do with the vehicle. The 2nd Defendant therefore was unable to raise any reasonable doubt, in my candid opinion, to establish satisfactorily to this Court that she did not know and had nothing to the 1st Defendant. I am also satisfactorily convinced by the testimony of the 2nd Plaintiff and corroborated by PW1 that the 2nd Defendant made some contribution towards the funeral of the deceased, contrary to the submissions of the 2nd Defendant’s Counsel in his written address. Once again, the bare denial of the 2nd Defendant that she did not contribute to the funeral does not lend itself to much, since the 2nd Defendant also denied being the owner of the vehicle in question until evidence was adduced by the Plaintiffs to establish otherwise. In the same vein, I find the testimony of the 1st Plaintiff and PW1 is satisfactory to establish that the 2nd Defendant contributed to the funeral of the deceased. [xxxvi] On a balance of probabilities therefore, I am satisfied that the Plaintiffs have been able to establish that the vehicle that caused the death of Etse Azumah did indeed belong to the 2nd Defendant. Having so established and in the absence of evidence to establish the contrary, I come to the conclusion that the 2nd Defendant, as the owner of the vehicle with registration number GS 7110 – 10 is vicariously liable for the death of the deceased, especially where the 1st Defendant never appeared before the Court to make a defence for himself. JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 25 I support my decision with the case of Atsyor V. Donkor & Another [1980] GLR 273 – 277 the Court held thus: “In such a case the burden of proof is on the defendant to explain and to show that it [the accident] occurred without fault on his part. … There was a lot of explanation to do in this case by the first defendant which was not done because he did not defend the action.” [xxxvii] The 2nd Defendant did defend the action; but she only made bare denials without more, and this Court is unable to rely on the bare denials of the 2nd Defendant alone to make any findings of fact in favour of the 2nd Defendant. In the case of IBM v HASNEM [2001/2002] SCGLR 393 at 402, the Supreme Court per Adzoe JSC held: “It is one thing pleading a cause and repeating it in Court, and another thing providing evidence in support of the cause so pleaded.” Also, in Yamusah vrs Mahama [1991] 1 GLR 549; Benin J (as he then was) proceeded to add to the above principle as follows: “It can be seen from this case that the plaintiff was not relieved of the duty of leading further evidence of negligence, nor did it disable the defendant from leading evidence to displace the prima facie negligence.” (Emphasis is mine) [xxxviii] There was indeed no evidence adduced for and on behalf of the 1st Defendant; from which this Court could even remotely infer that there was no negligence JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 26 on the part of the 1st Defendant to absolve the 2nd Defendant of liability; in the light of the evidence put forth by the Plaintiffs and their witnesses. For the foregoing reasons, I hold that the 2nd Defendant herein is vicariously liable for the negligence of the 1st Defendant, there being no iota evidence whatsoever adduced to enable this Court conclude that no liability attached the 2nd Defendant herein. I rely on the Busanga case (supra) where the learned Justices, went on to state that “In this case I find that all three conditions laid down in Erle C.J.'s celebrated dictum were present: (i) the vehicle was under the management and control of the driver stated to be the servant or agent of the first defendant, the owner; (ii) the accident falls into the category of a vehicle running off the road … and is of such kind as in the ordinary course of things does not happen if those in control of the vehicle are using proper care; and (iii) the absence of any explanation from the defendants who chose not to give evidence or even to state their version of the accident. 14. CONCLUSION [xxxix] In concluding, I would deal with the following issues: JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 27 - Whether or not the Plaintiffs are entitled to their reliefs. - Any other issue arising out of the pleadings The Plaintiffs prayed for the following reliefs: PLAINTIFFS’ RELIEFS SOUGHT 1. The special damages as endorsed above 2. General damages for a. Loss of dependency b. Loss of future income c. Pain and suffering d. Loss of life expectancy or years of purchase. The Plaintiffs, per their Counsel listed the special damages as follows: (1) SPECIAL DAMAGES GH¢ (a) Ambulance fee - 300.00 (b) Mortuary fee - 200.00 JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 28 (c) Coffin - 300.00 (d) Shroud - 100.00 (e) Undertaker - 300.00 (f) Transport expenses - 500.00 (g) Other Testamentary expenses - 1000.00 But the receipts produced in support of the above special damages were only for the following: The coroner’s inquest – Gh¢200.00 Undertaker’s fees – Gh¢300.00 Coffin – GH¢300.00 Ambulance fee – GH¢300.00 Shroud – Gh¢100.00 Making a total of Gh¢1,200.00 [xl] Apau JA (as he then was) in his article, Assessment of Damages drew a clear distinction between general and special damages thus: General damages are damages that the law presumes to have resulted from the defendant’s tort or breach of contract. They are normally damages at large and can be nominal or substantial depending on the circumstances of each case. JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 29 According to Lord Macnaghten, “general damages are such as the law will presume to be the direct natural or probable consequence of the action complained of.” ‘Special’ damages on the other hand, are such as the law will not infer from the nature of the act. They do not follow in ordinary cause. They are exceptional in character and therefore they must be claimed specially and proved strictly”. Special Damages are such a loss as will not be presumed by law. They are special expenses incurred or monies actually lost. For example, the expenses which a plaintiff or a party has actually incurred up to the date of the hearing are all styled special damages; for instance, in personal injury cases, expenses for medical treatment, transportation to and from hospital or treatment centre, etc. Again, substantial damage capable of pecuniary assessment, which flows directly and in the normal course of things from the act of the defendant for which he is responsible and which must be proved in the case of all torts not actionable per se is called ‘special damage’. Unlike General damages, a claim for Special damages should be specifically pleaded, particularized and proved. I call them the three P’s. [xli] From the evidence adduced by the Plaintiffs, I find that they have been able to establish that they are entitled to recover only the sum of Gh¢1,200.00 on the basis of the documentary evidence in the form of the receipts produced. JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 30 With respect to the other items under special damages, I hold that no iota of evidence was adduced in support of them, not even the transport expenses or other testamentary expenses and so the Plaintiffs cannot be entitled to those sums of monies save the amount of GH¢1,200.00 with interest from the inception of the suit until date of final payment. [xlii] The Plaintiffs further prayed for general damages under the following heads: a. Loss of dependency b. Loss of future income c. Pain and suffering d. Loss of life expectancy or years of purchase. There is however no iota of proof, once again, to establish the type of work the deceased did and the amount of money he used to earn. The Plaintiffs only stated that the deceased was an electrical contractor and earned between GH¢3,500.00 – Gh¢4,800.00 a month without adducing any evidence whatsoever in support. Being an electrical contractor during his lifetime is very easily capable of positive proof because the deceased may have worked for different people; and the income the deceased used to earn is also very easily capable of proof, but none was adduced. [xliii] The Plaintiffs again did not adduce any evidence to establish the existence of a mother, daughter or any dependent of the deceased. There was no birth certificate for instance for the said daughter of the deceased, the said mother was not produced and nowhere in the evidence adduced before this Court was there any proof that there was an existing mother and daughter of the deceased. JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 31 The evidence adduced rather led to the fact that the deceased was staying with an Uncle in Tema; and it appeared the deceased was rather dependent on the said Uncle. I am therefore unable to grant any damages for loss of future income and loss of dependency. In the case of Bonham-Carter v Hyde Park Hotel Ltd [1948] TLR 177 at 178 (cited in Kwadjon v Speedline Stevedoring Co. Ltd [2016] 92 GMJ @80), the Court held: Plaintiff’s must understand that if they bring actions for damages, it is for them to prove their damages, it is not enough to write down the particulars and so to speak throw the mat at the head of the court saying “this is what I have lost; I ask you to give me these damages”, they have to prove it. [xliv] There was however death and the deceased, said to be 25 years old or thereabouts at the time, lost his life. There is thus loss of expectation of life, which the Plaintiffs put as loss of life expectancy or years of purchase; as well as pain and suffering, once death has occurred. . In the case of ADAM v. PATRICK [1975] 2 GLR 155-158, the Court per Ata- Bedu J held: “In the process of assessing the general damages I am required to consider the heads: (1) loss of expectation of life and (2) the loss and damage. The damages for loss of expectation of life forms part of the estate of the deceased and as is provided by section 27 (1) of Act 176 that "Damages recoverable for the benefit of the estate ... shall not include exemplary damages." JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 32 This provision, I think, is in consonance with the principles formulated in Benham v. Gambling [1941] 1 All E.R. 7, H.L. that the damages should not be calculated solely or mainly on the basis of the length of life which is lost, but on the basis of loss of a measure of prospective happiness … [xlv] Relying on the above case law and considering the entire circumstances of this case, I shall award general damages of GH¢120,000.00 for loss of life expectancy and pain and suffering jointly and severally against the Defendants herein. Finally, this Court shall award costs of GH¢30,000.00 in favour of the Plaintiffs herein. SGD. JUSTICE PATRICIA QUANSAH HIGH COURT ‘B’ TEMA GREATER ACCRA REGION. 18TH OF JUNE 2024. COUNSEL: SOLOMON COLLINS ESHUN ESQ., COUNSEL FOR THE PLAINTIFFS PRESENT JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 33 PRISCILLA SINTIM ABOAGYE PRESENT, FOR RICHARD AKPOKAVIE ESQ., COUNSEL FOR THE 2ND DEFENDANT. JUDGMENT – ROSE LAGAH & 1 OR vrs JEFFERY BOATENG & 1 ANOR 34