Issa Vrs Verah Transport And Haulage Limited [2024] GHACC 294 (22 November 2024)

IN THE CIRCUIT COURT HELD IN ACCRA, 28TH FEBRUARY ROAD, ON FRIDAY THE 22ND DAY OF NOVEMBER 2024 BEFORE JUSTICE ELLEN OFEI- AYEH (MRS.)(JUSTICE OF THE HIGH COURT) SITTING AS AN ADDITIONAL CIRCUIT COURT JUDGE SUIT NUMBER : C4/21/2019 ABDUL MAJEED ISSA ……………………………… PETITIONER UNNUMBERED HOUSE OPPOSITE UNIQUE CHILD INTERNATIONAL SCHOOL OKPOI GONNO- TESHIE V VERAH TRANSPORT AND HAULAGE LTD ………………………… RESPONDENT OPPOSITE TIMBER MARKET TEMA. LAWYERS: Yvonne Amegashie for the Plaintiff Richard Akpokavie for the Defendant ----------------------------------------------------------------------------------------------------------- JUDGMENT ……………………………………………………………………………………………. Page 1 of 15 The facts not in dispute are that the plaintiff was formerly an employee of the defendant company employed as a heavy-duty truck driver sometime in the year 2017. The defendant is a registered company that carries out haulage and like activities. The plaintiff in his Reply, filed on 25/9/2019 admitted paragraphs 7 and 8 of the defendant's statement of defence which is a denial of the plaintiff’s pleadings, that the he ; plaintiff, obeyed the instructions given to him by his supervisors and offloaded and discharged the pallets. The defendant's statement of defence was filed on 6/8/19. It is a further denial that following the injury he was referred to LEKMA Hospital which subsequently referred him to Korle Bu Teaching Hospital. Yet by the plaintiff in another breath it is averred that the labour Commission advised that the defendant company pays for the medical bills. On 29th April 2019 the plaintiff caused his lawyers to file a writ of summons seeking the following; a) A declaration that on the 27th day of October the plaintiff sustained injuries which injury arose out of and in the course of his employment with defendant company. b) An Order directed at the defendant to pay to the plaintiff an amount of GHC26,000.00 being compensation due him under the Workman Compensation Act 187 c) A further order directed to the plaintiff to pay to the defendant an amount of GHC25,000.00 being the cost of medical bills incurred by the plaintiff the injury he sustained on the 27th of October 2017. d) Interest on the said amount at the prevailing commercial bank rate on reliefs (b) and (c) above at the prevailing interest rate from October Till the date of final payment e) Cost of the suit herein including solicitors fees. Page 2 of 15 The defendant denied the assertions made by the plaintiff claiming that the plaintiff did not injure himself during or in the course of his employment. The defendant has averred that the plaintiff was given an employment offer that set out the terms and conditions of the offer. Their case is that the discharge of goods is not part of the plaintiff's work. Neither is it the practice of the company. The issues set down for determination are as follows; a. Whether or not the plaintiff as part of his duties hauled goods of clients and discharged same at their end? b. Whether or not the plaintiff was injured in the cause of his employment with the defendant company. c. Whether or not the United Steel Company denied the fact that the plaintiff offloaded any pallets in their yard. d. Whether or not the plaintiff refused to submit himself to medical examination by a medical practitioner nominated by the defendant company On 30/10/2024, the defendant's counsel filed his written addresses. The plaintiff's counsel has not filed written addresses. THE EVIDENCE AND THE LAW The principle in Law is that he who asserts must prove. In Okudzeto Ablakwa (No 2) v Attorney General & Obetsebi Lamptey, the Supreme Court in dealing with the burden of proof, held at page 867 of the report that, ‘He who asserts, assumes the onus of proof…… what this rule means is that, if a person goes to court to make an allegation the onus is on him to lead evidence to prove that allegation, unless the allegation is admitted. If he fails to do that the ruling on that Page 3 of 15 allegation will go against him. Stated more explicitly, a party cannot win a case in court if the case is based on an allegation which he fails to prove or establish.’ It is also the view of the law that the burden of producing evidence shifts from party to party at the various stages of the trial based on the issues asserted to or denied. See the case of In Re-Ashalley Botwe Lands; Adjetey Agbosu And Others Vrs. Kotey And Others {2003-2004} SCGLR 420 AT PAGE 425. The standard of proof in civil cases is that the party who alleges is to prove his case on a balance of probabilities. Section 12(2) of the Evidence Act (1975) NRCD 323 defines the preponderance of probabilities as that “degree of certainty of belief in the mind of the court by which it is convinced that the existence of a fact is more probable than its non-existence. In consequence, where there is a counter-claim, it must be proven just like that of the claim, and the standard of proof just like that of the plaintiff is by the preponderance of probabilities, and for the defendant as if he were the plaintiff in respect of his claim. He assumes the same burden as the plaintiff to adduce sufficient evidence in support of his case if he is to succeed. See holding (b) in the Court of Appeal decision in Rev. Daniel Okpotiokertchiri v Eddie Nelson 2016 101 GMJ at page 138. In the present case there is no counter-claim filed by the defendant company. ISSUE A DW1, Mable Beatrice Quarshie, the Human resources and Administrative manager of the company, describes the plaintiff as a heavy-duty driver. The plaintiff describes himself as a heavy-duty driver who hauls goods for clients and discharges same at their end. In his testimony, the plaintiff stated that upon arriving at United Steel Company which is a Free Zone branch, he was told by their manager to assist in offloading the pallets due to the absence of labourers. He further testified that he initially refused to do so Page 4 of 15 and called his supervisor to tell him the reason why he was delaying his return. He testified by a witness statement that; ‘’6. I initially refused to Offload the vehicle and called my supervisor to tell him the reason why I was delaying in returning, I explained to my supervisor that the customer was asking me to offload the goods but I refused because it was not part of my work. 7. My supervisor then asked me to offload the pallets since I had to return to the office in good time for further assignments.’ (Emphasis supplied) By his testimony the plaintiff does admit that offloading goods was not part of his work. The defendant has tendered Exhibit 1- Employment Offer and terms and conditions of Employment. Under cross-examination, the plaintiff explained that he was informed during his interview for employment by Human Resources, that he was not only going to be a driver but would do any job he was assigned to which he accepted. See responses to questions 13 and 17 of cross-examination. It is my humble view that questions and comments made during interviews do not override the terms of the employment contract. I have considered the contents of Exhibit 1 which the plaintiff signed, and he has not complained that he did not understand the content. I find as a fact that the plaintiff was employed as a truck driver to haul and deliver goods, and for that matter, the discharge or offloading of goods at the client's premises, was not assigned to him as part of his employment. I also find as a fact that any orientation program by the defendant company was to equip him for the haulage of dangerous goods which the Page 5 of 15 plaintiff has described as cyanide in pallets, and of the motor vehicles he was to drive in his role as a truck driver. ISSUES B & C On the second issue, Section 2 of the Workman’s Compensation Act 1987, PNDC Law 187 provides an entitlement of compensation to an employee from the employer where the following conditions are satisfied; a. The victim is an employee b. The employee sustains a personal injury c. The personal injury resulted from an accident d. That the accident arose arising out of and in the course of his employment or dies as a result of an injury, accident, arising in the course of his employment. Section 2 of Act 187 provides, (1) Where an employee sustains personal injury by accident arising out of, and in the course of employment, the employer is liable, subject to this Act, to pay compensation in accordance with this Act. (2) An injured employee shall not suffer a diminution in earnings while the employee undergoes treatment for injuries sustained through an accident arising out of, and in the course of, employment. (3) Where an attending medical officer assesses an incapacity in respect of an injured employee, the employer shall pay the injured employee compensation commensurate with the incapacity so assessed. (4) Subject to sections 3 and 4, where the injury results in death or serious and permanent incapacity, the Court on consideration of the circumstances, may award the appropriate compensation under this Act. Page 6 of 15 (5) The employer is not liable to pay compensation in respect of an injury to an employee resulting from an accident which is attributable to the employee having been un der the influence of drink or drugs at the time of the accident. (6) For the purposes of this Act, an accident resulting in the death or serious and permanent incapacity of an employee arises out of and in the course of employment, (a) although the employee was at the time when the accident happened acting in contravention of a statutory or any other regulation applicable to the employment or was acting without instructions from the employer; (b) if the act was done by the employee for the purposes of and in connection with the employer's trade or business. (7) Compensation is not payable under this Act in respect of incapacity or a death resulting from deliberate self-injury. (8) Compensation is not payable under this Act in respect of an incapacity or a death resulting from personal injury, if the employee has at any time represented to the employer that the employee was not suffering or had not previously suffered from that or similar injury, knowing that the representation was false. In Kharly Hodanu’s Labour Law in Ghana: An Essential Guide, 2022, Icon Publication, at page 425, he refers to the decision in Arhin v Brenya & ano 1967 GLR 791-802 ‘ ..under the Workman’s Compensation Act, a Claim arose whenever a workman sustained personal injury by accident which arose out of or in the course of his employment except where the injury was attributable to the serious wilful misconduct or to the workman having been at the time under the influence of drink or drugs or Page 7 of 15 where the incapacity or death resulted from a deliberate self-injury or where the workman made a false representation to the employer.’’ The plaintiff in his witness statement and the supplementary witness statement, which was adopted by the Court, testified that on 27th October 2017, he was instructed by the defendant company to haul two twenty-footer containers. From his responses, the containers were full of pallets that contained Cyanide and he was instructed to send them to United Steel Company Ltd, a client of the defendant company. Upon reaching their premises their off-loaders were delayed and he was told by the manager that their Labourers were not available to offload so he; the plaintiff should assist in offloading the truck. He added that he initially refused the manager’s ‘confrontation’ and called his supervisor. His supervisor directed him to offload the pallets as he had further assignments. He testified that he did so and suffered some injury within his neck and shoulders due to the pallets he single-handedly had to offload. He tendered into evidence a medical report of Injury as Exhibit ‘A’, and Exhibit ‘H’ as proof of injury sustained emanating from Korle-Bu Teaching Hospital. Exhibit ‘A’ has not been challenged in respect of the occurrence of an injury. What has been challenged is whether the said injury occurred on 17th October 2017 during the course of the employment with the defendant company. In St. Helen’s Colliery Co v Hewiteson 1924 AC 59 at page 70, relied upon in Labour Law in Ghana: An Essential Guide(supra) at page 428; the House of Lords stated ; ‘ I think the words arising out of suggest the idea of cause and effect, the injury by accident being the effect , and the employment, i.e the discharge of the duties of the workman’s service, the cause of that effect, and that the words ‘in the course of his employment’ meanwhile the workman is doing what he is employed to do, i.e discharging the duties to his employer imposed upon him by his contract of service. Page 8 of 15 The word ‘employment’ in this connection must cover and include the things necessary and incident to the employment. .’’Lord Atkinson In the above mentioned case, injuries occurring to employees going to work or coming from work were not considered as having arisen in the course of employment. Notably, the content of Exhibit ‘A’ refers to an injury of Cervical Spine Spondylosis and Radiculopathy and a left shoulder dislocation. It states as follows; ‘ The above-named has been seen and managed at our facility for Cervical Spine Spondylosis and Radiculopathy and a left shoulder dislocation. He presently requires an MRI scan of his neck and left shoulder. He is alleged to have sustained various injuries to the left shoulder while carrying heavy loads. Kindly accord him the necessary courtesies his current condition may so deserve’’ Exhibit ‘H ‘’makes reference to a degenerative disease of the neck. The defendant company through its witness DW1, Mable Beatrice Quarshie testified that the plaintiff was employed on 15/3/2017 and terminated on 27/11/2017 as a heavy- duty truck driver and provided with an employment offer that detailed his hours of work and terms and conditions of his employment. She testified that his duty job title does not include the discharge of goods as claimed by the plaintiff. Neither did it include the discharge of the pallets as rightly stated by the plaintiff in statement of claim at paragraph 7 (supra). DW1, also denied the allegation of the plaintiff that it had been the practice for drivers to offload cargo in the premises of United Steel Company Limited. She further testified that the plaintiff was queried regarding the trip he made to United Steel Company due to the several diversions he made, and his response to the query made no mention of offloading the palettes nor having suffered any injury on the said Page 9 of 15 date of 27th October 2017. She relied on a query dated 19/11/2017 and a vehicle track view as Exhibit 4 series. Under cross-examination, the plaintiff was challenged that carrying or offloading the pallets or goods was not part of his scope of employment which he denied by insisting his supervisor directed him to carry it. Who is his supervisor or the alleged Superior that the plaintiff claims gave the directives contrary to the scope of his employment? To the extent that he admitted that the two twenty-foot containers were full and so he singlehandedly had to offload them manually from 3:00 pm till 6:30 pm? The plaintiff claimed that the supervisor asked him to hurry and return to do further assignments when at the time he was leaving United Steel Company it was past 6: 30pm? The plaintiff failed to call any witness, ie, United Steel Manager, or security man who was allegedly present to testify. Neither was any witness from United Steel company compelled to testify. These persons in my humble view are material witnesses. DW1, described the supervisor as Foster Danquah, and under cross-examination, she insisted that the plaintiff had to follow lawful instructions from his supervisor. The supervisor, a material witness for either party was not called to testify by either party even as a hostile witness. The medical report in Exhibit A and Exhibit H failed to provide a recommendation of the percentage of Incapacity and/or disfigurement. So does exhibit H’’ fail to disclose same. Where did the plaintiff get these figures of 40% permanent incapacity from? I find the medical reports are scanty with very little information regarding recommendations to 40% permanent incapacity as is required in cases such as this. The evidence of the plaintiff having been so challenged had a burden to discharge. I find as a fact that the plaintiff did suffer an injury. Was this injury suffered on 27th October 2017, as challenged by the defence? Under cross-examination, Plaintiff claimed that he had to go to the hospital in the night of 27th October around 12: 30 midnight, due to the unbearable pain he was in. He was Page 10 of 15 discharged on the 28th of October 2017. On 28th October 2017, he was given labs to do and that took some days. His next visit was on 3/11/2017 when he was referred to Korle Bu Teaching Hospital. Dr Folasade Ojo-Benys, DW2, testified by a subpoena that she was the head of Clinical service of the Hospital- LEKMA, and they had no records of the plaintiff’s visit on the 27th October or 28th October of 2017. Based on the Patient folder she was ordered to produce by a Subpoena, the earliest date of attendance was 9/10/2018. She further insisted the complaint by the plaintiff at the hospital was on account of a Rib Fracture and not a complaint of the neck. I considered the responses of the DW2 under cross-examination regarding the referral form to Korle Bu and in respect of exhibit J, and I find as a fact that the records furnished by DW2 are not conclusive of whether or not the plaintiff attended the hospital on the 17th or the 18th October 2017. This is also due to the admission by DW2 that the records were system generated and that by Exhibit J, there were other records systems keeping aside Exhibit 16. By virtue of exhibit 7 series dated 13/11/2017, I find it a fact that in November 2017 the defendant visited the LEKMA hospital and was given an excuse Duty and required a Radiology report. However, why did the plaintiff answer as follows; Q. I41. I put it to you that whatever injury you claim happened on 27th October 2017 never happened. A. It happened Q 142. I also put to you that whatever injury you had for which you have submitted, the doctor's report in your supplementary witness statement did not happen while you were an employee of the defendant company. Page 11 of 15 A. It is not true because on 27th October 2017, Friday, I clocked in at 7 : 30 am and I was dispatched by my superior to send the containers of pallets to United steel. I had this accident while at work and I clocked out at 4 :30pm as it happened at office hours being 3 to 3:30pm exactly. Before I came with the truck to the company the company had closed. In my humble view, if it happened during this time frame, how did the plaintiff offload pallets filled in two 20-foot containers in so little time? Again he previously responded that he left United Steel company at 6:30 pm. See question 35 of his response under cross-examination. How does he reconcile this statement with the time, 3:30 pm? I find the plaintiff’s assertion most improbable regarding the injury occurring on the 27th of October 2017. I also find as a fact that during work hours the plaintiff was scheduled to make a delivery of pallets to United Steel company. The plaintiff under crossexamination stated that the delivery was in respect of two twenty-foot containers full of pallets and they were pallets containing Cyanide. See question 21 of the crossexamination. Back to the substantive issue, in their defence DW1 tendered into evidence as Exhibit 1 dated 14/3/2017 the employment offer of the plaintiff with the Contract containing the Terms and Conditions for employment DW1 also submitted that per Exhibit 1, the terms of employment, an injury had to be reported immediately, which was not complied with by the plaintiff. Rather it was on 13th November 2017 that the medical report with an excuse duty was issued, and which was presented to the defendant. Why would the plaintiff wait a little over two weeks before reporting an injury he had suffered ‘during work hours, and in the course of his employment?’’ Page 12 of 15 DW1 tendered into evidence Exhibit 5 a letter addressed to the Defendant company denying the allegation of the plaintiff. This transgressed the hearsay rule and it offended both common Law and the Evidence Act, Act 323 because the author of Exhibit 5 failed to testify. See Bio v Yeboah 1984-86 1 GLR 745. No reliance was given to that. However, the burden of proof failed to shift to the defendant whose allegation had been denied and challenged by the defendant. Under cross-examination, the plaintiff denied that he stated in his testimony that he had never received a query. This is a clear contradiction to his evidence in chief. In Ambrose Dotse Klah v Phoenix Insurance Co ltd, (2012) SCGLR 1139 per Akoto Bamfo (Mrs) JSC, relying on the case of Majolabe v Larbi 1959 GLR 190, what constitutes proof is explained as “… where a party makes an averment capable of proof in some positive way, example by producing documents, description of things, reference to other facts, instances and his averment is denied, he does not prove it by merely going into the witness box, and repeating the averment on oath, or having it repeated on oath by a witness. He proves it by producing other evidence of facts and circumstances from which the court can be satisfied that what he avers is true.” From the evidence on record, and the findings made, there is no evidence led by the plaintiff before me that his supervisor instructed him to off-load pallets contained in two twenty-foot containers for United Steel Company Ltd., between 3:00 pm and 6:30 pm which was contrary to the scope of his employment..i. e discharging the duties to his employer imposed upon him by his contract of service. It is my humble view that the plaintiff was on a frolic of his own and I find it more probable that the injury caused the plaintiff did not occur arise out of, and in the course of employment, of the defendant which is the fourth requirement in making a grant. The plaintiff is therefore not entitled to recover an amount of GHC26,000.00 being compensation due him as claimed under the Workman's Compensation Act 187. Page 13 of 15 ISSUE D_ - MEDICAL BILLS & INTEREST ON MEDICALS The plaintiff prayed for an order directed at the defendant to pay an amount of GHC25,000.00 being the cost of medical bills incurred by the plaintiff the injury he sustained on the 27th of October 2017. He testified that he incurred bills for the treatment tests and medication purchased for the injury he sustained on the 27th of October 2017. He relied on Exhibits E to H. He also denied that the defendant company asked him to go to the Port Clinic to be examined by a Doctor and undergo a scan which he refused. DW1 testified that the company is obligated to provide for workers who report injury in line with their procedure. She added that the defendant has measures in place as first Aid and there are registered medical facilities within Tema /Accra such that if the injury occurred on the 27th October as acclaimed he would have been provided with medical attention. Therefore, the plaintiff was requested to have a comprehensive medical examination in relation to the injury he complained of and till date he has not made himself available for the medical assessment. She relied on Exhibit 13 a letter addressed to the Port medical Clinic, which she explained came up after receipt of a letter from the Metro Labour office. As previously stated the requirement of Act 187 is provided for in section 2(1) ; (1) Where an employee sustains personal injury by accident arising out of, and in the course of employment, the employer is liable, subject to this Act, to pay compensation in accordance with this Act. I have made a finding of fact that the injury was not proved by the plaintiff in accordance with the standard of proof, to have arisen out of, and in the course of his Page 14 of 15 employment. In effect, whatever expenses on medical bills that are attributable to an injury he claims to have suffered on the premises of United Steel Company should not be borne by the defendant company. On whether or not the plaintiff refused to submit himself to a healthcare provider of defendant's choice, it would bear no consequence in this judgment. Accordingly, the plaintiff is not entitled to his claims. His claim for interest also fails. In conclusion, the plaintiff’s claims are dismissed in its entirety. COSTS Ordinarily, in assessing costs, ‘the court takes into consideration reasonable remuneration, for the lawyer in respect of the work done by him in the proceedings and compensates the victor for reasonable expenses incurred as well as the cost fees paid’. See Sega Exports Ltd v Dart Hills Ltd. suit number H1/197/2012 delivered on 2/5/2013, C.A. The plaintiff has always been represented by the office of Legal Aid. I balance this with the defendant who is the victorious party and in the interest of justice and upon hearing the parties award costs of GHC2000.00 against the plaintiff. .............sgd............... ELLEN OFEI – AYEH (JUSTICE OF THE HIGH COURT) Page 15 of 15