Kottey v Asare (A2/222/24) [2025] GHADC 122 (5 May 2025)

IN THE DISTRICT COURT AT LA HELD ON MONDAY THE 5TH DAY OF MAY, 2025. BEFORE HER WORSHIP ADWOA BENASO ASUMADU-SAKYI, SITTING AS MAGISTRATE SUIT NO: A2/222/24 FREDERICK NEE QUAYE KOTTEY H/NO. A0191 ALLOWAY AVENUE TESHIE-TSUIBLEOO >>> PLAINTIFF VRS. BENJAMIN ASARE OF ACCRA >>> DEFENDANT _______________________________________________________________ PARTIES: Plaintiff present Defendant absent JUDGMENT _______________________________________________________________ INTRODUCTION The Plaintiff filed this instant suit on the 22nd of July, 2024 against the Defendant and prayed for the following reliefs; 1. An order for the Defendant to pay the Plaintiff’s the Hospital bills he incurred in treating himself. 2. An order for the Defendant to replace promptly the following allegedly damaged parts which have been subsequently identified to be defective or reimburse Complainant for same; Front cut complete, Bonnet, Fender, Gear Box, Engine seat (Front and Back), Engine water hose (Top and down), Front Beam, Engine Exhaust (Front), Gear Lever Selector, AC Pipes and Tubes or to pay its equivalent amount of GH¢ 33,300.00. 3. An order for the Defendant to pay for the labour for mechanic and sprayer and welder (GH¢ 3,500.00). 4. Cost 5. Any other reliefs that the court deem appropriate. A notice of appointment of solicitor was filed by Nkrabeah Effah-Dartey on behalf of the Defendant on the 22nd of August, 2024. The court dispensed with the filing of pleadings and ordered the parties to file their witness statements on the 18th of September, 2024 and the Plaintiff filed his witness statement on the 4th of October, 2024 and the Defendant filed his witness statement on the 18th of December, 2024. Case management conference was conducted on the 25th of February, 2025 and the Plaintiff was allowed to proof his case on the 2nd of April, 2025 and the case was adjourned to the 5th of May, 2025 for judgment. PLAINTIFF’S CASE The Plaintiff’s case is that on the 24th of July, 2023 at about 5:30am he was driving from his home to the office from Teshie to Accra and when he reached about a 100m from Osu Regal shell filling station, he sported a car being driven by the defendant being driven from his left side trying to enter from the South La estate junction. The Plaintiff states that although he blew his horn, the Defendant forcefully entered the road and stopped in the middle of the road and expected him to swerve him to oncoming traffic. Unfortunately, at the left side of the road where the Defendant’s vehicle entered had a trotro packed and another trotro had also packed at the right hand side of the Plaintiff’s vehicle and was picking passengers. As a result due to the close proximity of the vehicle, although he applied his breaks he hit the Defendant’s car from the back because his car was still stationary. He goes on to state that due to the accident his car got damaged and he had to repair the following parts of the car; He also states that he asked the Defendant when he was going to repair the car and he answered that he had to talk to the owner of the car but the police came to the accident scene and they took the matter up. Later when he enquired from the Defendant when he was going to repair his vehicle he informed him that the police commander did not inform him he was at fault. The Defendant refused to turn up at a meeting scheduled to meet the said commander and as a result he was advised by the police to institute this instant action. He also states that all efforts for the Defendant to pay him the money he incurred in repairing the car has proved futile. DISCUSSION OF THE LAW The law is trite that a party who asserts a fact assumes the responsibility of proving same and thus the burden of producing evidence as well as the burden of persuasion is therefore cast on that party and the standard required is provided for by the virtue of sections 10,11 and 12 of the Evidence Act, 1975 (NRCD 323). The above stated provisions have received judicial blessings by the Supreme Court who has pronounced on them in the past to be the nature and standard of proof in civil cases. This position of the law has been reiterated in the case of Ackah v. Pegrah Transport Ltd And Others [2020] SCGLR 728 where in unanimously dismissing an appeal, the Supreme Court held as follows; “It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is carried and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more probable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323),” See the case of Ababio v. Akwasi IV [1994-1995] GBR 774 The Court has a duty to examine the evidence on record and determine whether the Plaintiffs have met the burden of proof. It is settled law that he who alleges must prove his case on the strength of his own case. This principle was enunciated in the case of Owusu v. Tabiri and Another [1987-88] 1 GLRR as follows: “It was a trite principle of law that who asserted must prove and win his case on the strength of his own case and not the weakness of the defence”. In civil cases the standard of proof is by a preponderance of probabilities which was defined in the case of GIHOC Refrigeration and Household v. Jean Hanna Assi [2005-2006] SCGLR 458 as a party’s ability to persuade the Honourable Court that the existence of a relevant fact is more probable than not, this is what the Court had to say: “Since the enactment of NRCD 323, therefore, except otherwise specified by statute, the standard of proof (burden of persuasion) in all civil matters is the preponderance of the probabilities based on a determination of whether or not a party with the burden of producing evidence on the issue”. The Plaintiff therefore has a duty to prove his case by leading sufficient evidence to convince the court that his story is probably true. In the case of Zabrama v. Segbedzi [1991] 2 GLR 223 at page 246 the Court held as follows: “a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And, he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden”. The Plaintiff entered the witness box and relied on his witness statement which was adopted as his evidence in chief on the 4th of April, 2025. According to the Plaintiff, he was driving his car from Teshie to Accra and upon reaching about 100m ahead from Osu Regal shell filling station he ported Defendant trying to enter the road from the South La estate junction. The Plaintiff upon seeing this blew his horn to alert the Defendant to stop but the Defendant rather forcefully entered the road and then stopped in the middle of the road so the Plaintiff could swerve his vehicle. Unfortunately, there was a trotro which had packed at the Defendant’s left side and the Defendant’s right side which was picking passengers and as a result of this and due to the close proximity he hit the back of the Defendant’s stationary vehicle which had parked in the middle of the road. The Plaintiff contends that the due to the heavy impact, his vehicle was extensively damaged and the following parts of his vehicle got damaged; Front cut complete, Bonnet, Fender, Gear Box, Engine seat (Front and Back), Engine water hose (Top and down), Front Beam, Engine Exhaust (Front), Gear Lever Selector, AC Pipes and Tubes. The Plaintiff’s case is that the Defendant who is a driver and a road user and thus owes a duty of care to the Plaintiff who is a road user and must therefore must repair his damaged vehicle. The evidence adduced by Plaintiff stands unchallenged and prove that the conduct of the Defendant was negligent and in breach of his duty of care to other road users which the Plaintiff was a part of. The Defendant failed to appear to cross examine the Plaintiff due to his refusal to show up in Court despite being given several notices to appear. The position of the law is that when a party is given the opportunity to contest or lead evidence in defence of allegations against him but fails to avail himself of the opportunity, the court will be entitled to proceed with trail to its conclusion and make findings on the basis of the evidence adduced at the trial and proceed to give judgment. In Fori v. Ayirebi (1966) GLR 627 SC it was held that when a party had made an averment and that averment was not denied, no issue was joined and no evidence need be led on that averment. Similarly, when a party had given evidence of a material fact and was not cross examined upon it, he need not call further evidence of that fact. See the cases of Takoradi Flour Mills v. Samir Faris (2005-2006) SCGLR 890, In Re West Coast Dying Industry Ltd; Adam v. Tabdoh (1984-86) 2 GLR 561 SC, Watalah v. Primewood Products Ltd (1973) 2GLR 126 and Hammond v. Amuah (1991) 1 GLR 89 at 91. It is also settled law that a party is to suffer the consequences or liabilities for not attending court after he has been duly served with processes and accordingly notified. See cases of Republic v. High Court (Fast Track Division); Ex-parte State Housing Co. Ltd (No. 2) (Koranten-Amoako Interested Party) (2009) SCGLR 185 at 190 and Agbewole v. Abodegbey (2012) 44 GMJ 124 at 129. This being said this court has to analyse the evidence adduce by the Plaintiff and apply the law. From the foregoing it is clear that the main issue for determination in this case is whether or not the Defendant was negligent and whether his lack of duty of care led to the accident. In the case of Blyth vrs Birmingham Waterworks Co (1856) 11 Exh. 781 at 784, the court speaking through Baron Alderson defined Negilgence as: “Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do”. See the cases of Kyeremanten v. Amadu [1972] 2 GLR 344 at 347 and Nyame v. Tarzan Transport and Another [1973]1 GLR 8-11. The neighbour principle and the need to take care of the property of another which is in such proximity to a person such that it is reasonably foreseeable that if due care is not taken damage may be done by the one to the other is still applicable in the instant case. See the case of Donoghue v. Stevenson [1932] AC 562 at 580. The Defendant therefore owed a duty of care to the Plaintiff to drive with care and to make sure his actions would not result in an accident which he failed to do by joining the road and stopping in the middle of the road thereby causing danger and obstructing the road for other drivers. In the case of Brown v. Saltpond Ceramics Limited [1979] GLR 409-416, the Appellant urged upon the court to apply the principle of res ipsa loquitor, the court dismissed the appeal and proceeded to lay down the modes of establishing negligence when it held at page 410 as follows: “the basis of success by a plaintiff in a case arising from personal injury on the highway was negligence by the defendant and this must be established either expressly, by direct evidence of acts or omissions before the happening of the accident, or circumstantially by way of reasonable inference from the particular facts of the accident itself provided such facts in themselves permitted the inference of negligence to be drawn. It was not enough for res to speak; it must speak with the voice of negligence for the doctrine of res ipsa loquitor to apply” From the foregoing, in order to succeed in establishing negligence the Plaintiff must establish by direct evidence and omissions on the part of the Defendant or circumstantial evidence from which negligence can reasonably be inferred. It must be noted that as much the principle res ipsa loquitor can be inferred same is not automatic in its application. In the instant case the conduct of the Defendant having refused to appear in court to deny the assertions made against him by the Plaintiff and the unchallenged evidence of the Plaintiff has established that the Defendant was negligent and in breach of his duty of care. The next question that arises is what was the extent of liability against the Defendant? In the case of Kubi and Others v. Dali [1984-86] GLR 501-510 the Court of Appeal, per Apaloo C.J., Mensah Boison and Abban JJ.A. at page 505 at holding 1, 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 not be recovered. In the instant case, the plaintiff had set 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 special damages. There was no doubt that the plaintiff has 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.” In the instant case, even though the Plaintiff failed to comprehensively particularize the damaged caused, there is evidence on record show that parts of the Plaintiff’s vehicle was damaged by the conduct of the Defendant. The following parts were stated by the Plaintiff in his witness statement as being damaged; Front cut complete, Bonnet, Fender, Gear Box, Engine seat (Front and Back), Engine water hose (Top and down), Front Beam, Engine Exhaust (Front), Gear Lever Selector, AC Pipes and Tubes. There is also evidence on record that the amount the Plaintiff incurred by the Plaintiff in repairing his vehicle was Thirty Three Thousand Three Hundred Ghana Cedis (GH¢ 33,300.00) and that no provision was made by the Defendant to pay this cost. The next question to be addressed is whether or not the Plaintiff is fully entitled to Thirty Three Thousand Three Hundred Ghana Cedis (GH¢ 33,300.00) being the cost the Plaintiff incurred in repairing his vehicle. In the case of Ankomah v. City Investment Company Limited [2012] 2 SCGLR 1123 at 1134 where the Supreme Court speaking through Dotse JSC stated that if the plaintiff expects the court to award him the amounts specially pleaded in the statement of claim, then he ought to strictly prove the prove the amounts so claimed. In my opinion, the court will only grant what you have been able to prove and not necessarily all the claims you have made. The entire testimony stands unchallenged by the Defendant by his failure to cross examine the Plaintiffs and as such I hereby conclude that he has been able to proof that his vehicle was damaged due to the negligence of the defendant and that he spent an amount of GH¢ 33,300.00 to repair same. There is also evidence on record that the Defendant has refused to refund the amount the Plaintiff paid to repair his vehicle. The Plaintiff is also seeking for the Defendant to pay his hospital bills he incurred in treating himself. I have carefully perused the testimony of the Plaintiff and it is clear that he failed to lead any evidence on how much he spent on his hospital bills or that he even went to the hospital. This court will not assume facts which are not evidence and as a result the Plaintiff failed to proof this relief. The Plaintiff is also claiming for the Defendant to pay for the labour for mechanic and sprayer and welder to the tune GH¢ 3,500.00. Once again a careful perusal of the Plaintiff’s testimony clearly shows that the Plaintiff completely abandoned this relief when he was testifying and as such it is the opinion of this court that he has failed to succeed on this relief as well. CONCLUSION Upon consideration of the totality of the evidence adduced by the parties, the authorities cited and the law, the unchallenged evidence of the Plaintiff is more probable on the balance of the preponderance of the probabilities and proceeded to establish the extent of his claim. Accordingly, judgment is entered in favour of the Plaintiff against the Defendant for the following reliefs: a. Recovery of Thirty Three Thousand Three Hundred Ghana Cedis (GH¢ 33,300.00) being the cost of repairing his damaged vehicle which was caused by the negligence of the Defendant. b. Cost of Five Thousand Ghana Cedis (GH¢ 5,000.00) is awarded against the Defendant. SGD H/W ADWOA BENSAO ASUMADU-SAKYI MAGISTRATE