ALBERT TETTEH V EMMANUEL ADAMS & 2 ORS (A2/41/2019) [2024] GHADC 531 (5 November 2024)

BEFORE HER HONOUR NANA ADWOA SERWAA DUA-ADONTENG, CIRCUIT COURT JUDGE SITTING AS AN ADDITIONAL MAGISTRATE DISTRICT COURTGBESEACCRA ONTUESDAYTHE 5THDAYOF NOVEMBER, 2024. --------------------------------------------------------------------------------------------------------------------- SUITNO. A2/41/2019 ALBERTTETTEH :::PLAINTIFF VRS. 1.EMMANUELADAMS :::DEFENDANTS 2.FRANCIS ACHAAB 3.KARIM ABBISAH ----------------------------------------------------------------------------------------------------------- RULINGON APPLICATIONFOR SUBMISSIONOF NO CASE ----------------------------------------------------------------------------------------------------------- This is a Ruling made necessary by an application to the court by Counsel for Defendant at the close of Plaintiff’s case. It is Counsel for Defendant’s contention that rather than put forth the defence by calling witnesses, he will activate the unique procedure of calling on the court to make a Ruling on an Application to Dismiss the Plaintiff’s case, Plaintiff being unable to establish his claim for Judgment to be granted inPlaintiff’sfavor. Considering that this procedure when activated puts an end to the case, it is important to vote that the Defendant cannot after the Court’s Ruling pray to call its witness should the Ruling not be favorable to Defendants. The Defendants’ Lawyer has waived the right of Defendants to open their defence for this Ruling and that right cannot be claimed on the basis of audi alteram partem (their right of not being heard on their defence) Plaintiff has closed his case relying only on his testimony as evidence before this court. Although the court adjourned 13thMarch, 2024 for Counsel for Defendant to file his Motion for Submission of No case, to date no motion has been filed. I shall therefore proceedsolely ontheevidence the Plaintiff before this Court. This case started 12thFebruary,2019before HWAfua Sackey,thenHW IsaacAddo, HW Felicia Annane-Antwi, then finally before me on 22nd December, 2020. The case was at that stage ripe for Case Management Conference but due to the absence of Counsel for Defendants had to be adjourned. Case management Conference was completed by 1st June, 2021 but hearing could not commence as arranged due to Counsel for Defendants’ absence until31stMarch. 2022. The issue before the court is the liability on the defendants joined and severally to pay the plaintiff for damage caused to his vehicle. The defendants in their pleadings admitted that it was their conduct particularly D3 which caused the accident which damaged plaintiff’s vehicle. The question was if they admitted the damage why were they refusing to pay for the cost of the damages. Counsel for defendants prayed that the burden for the court was assessment of damages and not whether or not the accident occurred. It was the evidence of the plaintiff via his witness statement that he is a taxi driver resident at Amasaman. He testified that in the course of driving his vehicle Pontiac vibe taxi with registration number GS 5514-13, the D3 driver in charge of a vehicle rammed into his vehicle for which the accident t was reported to the Tesano Police station. The plaintiff exhibited a police report of the incident which the defendants’ lawyer objected to on grounds that the plaintiff was not the author of the document. The courtruled pursuant to section125ofthe EvidenceAct, 1975(NRCD 323) that the report was being exhibited as proof that the incident was reported to the police and not for its contents. The issue however arose why the plaintiff had attached a photocopy and not an original copy of the report and the plaintiff testified that what had been tendered was the original copy given to him by the police. There was no challenge raised by defendants’ lawyer to this averment. Another issue for determination was whether or not the plaintiff had submitted proof of damage done to the vehicle. The plaintiff testified that he had not attached pictures of the damage done to his car to his witness statement because during ADR, he furnished the defendants with the pictures when they requested for same. Additionally, he further averred that the police report he exhibited had the damage caused to the vehicle by the D1. The courtfinds thatsince he is notthe author ofthe police report, theplaintiff cannot seek to prove damage to his vehicle by relying on the police report. It was his duty to ensure that the officer who authored the report be called by himself or the court to tender same into evidence. Having failed to call the police officer, does the court find this grave to the case of the plaintiff? I do not think so. I find that the once the question before the court is assessment of liability, the testimony of the police officer in corroborating the police report would have been only to prove that the accident occurred and that there was damage caused to plaintiff’s vehicle. The police officer is not an assessment officer to be able to determine the level of damage done. That would have been the job of an assessor possibly from an insurance office. Having failed to call one himself, the court could have called the insurance officer as an expert witness to assist as stipulated by the NRCD 323. However, the court determined that considering that the defendants were not disputing that there was damage caused to the car or that the purported GHs10,610 spent by the plaintiff on repairing the vehicle was valid, it did not merit engaging an expert witness. Indeed, the bane of defendants’lawyer’s cross-examination was that the plaintiff failed to produce documents to support his claims. I agree that if these documents were not tendered into evidence, the plaintiff could not be cross-examined on them. I have to therefore find whether the testimony by the plaintiff that he had already shared those documents with the defendants was sufficient to prove that the defendants were aware of the pictures, receipts and invoices as alleged by the plaintiff. During cross-examination, counsel for defendants did not deny that indeed these documents had come to the notice of the defendants. It leaves the court to believe that they are in fact aware of the documents having been shared by the plaintiff. Can the court rely on the proceedings at ADR to make a determination of facts in this matter? ADR is without prejudice, meaning that what is agreed between by the parties at ADR is not binding on the parties unless the agreement is reduced into writing and signed by all parties concerned. Does this therefore mean that any documents shared during the out of court proceedings can be ignored because it was not tendered in trial. I do not think so. I understand that it is the final agreement which is without prejudice and not the discussions thereat. So that if an admission is made atADR, that admission unless is reduced into writing cannot be relied upon to give consent judgment against the person who made the admission. It however does not mean that if there is no final admission, one party cannot refer to the fact that the admission wasmade duringADR. The duty of the court is to assess the value to place on the fact that the said admission was made during ADR proceedings. If my understanding is right, then if documents were shared between parties atADR and the party to whom the documents were delivered does not dispute receiving the documents, then failing to reproduce the documents during trial afterADRwas unsuccessful should not negative the testimony that the documents were shared. What I must therefore determine is admitting that I find that the defendants were given the police report, receipts and pictures of the damage to the car by the plaintiff, can I, deeming the defendants to have knowledge of the documents proceed that the defendants could have raised challenges to the documents. I find that the documents presentedto the defendantsoutside ofthe conventional trial, thatis, atADR, could be said to fall within the remit of hearsay evidence because they were offered outside of trial. The principal enactment that governs the admissibility of evidence is the Evidence Act, 1975 (Act 323). The said Act defines evidence as “testimony, writings, material objects or any other things presented to the senses that are offered to prove the existence ornon-existence ofafact.” Although as a general rule all relevant evidence is admissible, Act 323 specifically provides for categories of evidence that may be inadmissible. One of such categories is hearsayevidence. Hearsay evidence is defined by Section116(c) ofAct 323as follows: "Evidence of a statement other than a statement made by a witness while testifying in theactionat the trial, offered toprovethe truthofthe matterstated". Hearsay evidence is not wholly inadmissible. There are statutory qualifications to the admissibility ofhearsay evidence which arelaterdiscussed inthis judgement. InNASSERVRS. MCVROOM [1996-97] GLR467,this Court, speaking through Acquah JSC(as he thenwas)notedthe statutory qualificationfor the admissibility of hearsayevidence when he said asfollows: "The Evidence Decree, NRCD 323 has made major inroads into the law of hearsay and consequently hearsay evidence cannot under the Evidence Decree, 1975 (NRCD 323) be said to be inadmissible perse..." When an objection is raised to the admissibility of evidence on grounds of same being hearsay, a court of law must go through the checklist of exceptions created to the hearsay evidence rule under Act 323 to satisfy itself that the said testimony cannot be saved under any of the exceptions. This is because to disallow evidence which is otherwise admissible per statute may have the dire consequence of occasioning a party injustice especially so where such decisions arenot contestedby meansofappeal. Sections 118to134provide the various exceptions tothehearsay rule, and section 118 specifically statesas follows, "(1)Forthe purpose ofsection 117,evidence ofahearsaystatement is admissible if athestatement made by the declarant wouldbe admissible had it been made while testifying in theactionand would notitself be hearsay evidence and bthe declarant is (i)unavailable as awitness or (ii) awitnessor willbe witness subject tocrossexamination concerning the hearsaystatement. (iii) available asawitness and the partyoffering theevidence has givenreasonable notice tothecourt andtoeveryotherparty oftheintention tooffer thehearsay statementat the trial andthe notice gavesufficient particulars (including the contents ofthe statement towhomit wasmade and ifknown whenand where toafford a reasonable opportunity toestimate the value ofthe statementinthe action". Section118provides forthe admission offirst-hand hearsay evidence subject to conditionsset out in thesaid section. Inthis regard, PwamangJSC inajudgementof this Courtdated28thJuly,2021in Suit No.: J5/58/21 entitled: REPUBLICVRS. HIGH COURT(CRIMINAL DIVISION), ACCRA, EX PARTESTEPHENK. OPUNI (ATTORNEYGENERAL INTERESTEDPARTY)said concerning first hand hearsays asfollows: “First-hand hearsay evidence is a statement or representation made outside the trial in which it is sought to be introduced which if it had been made by the declarant herself while testifying in the case, would have been admissible … A close reading of section 118 would reveal that it makes first-hand hearsay evidence admissible under three different situations; (i) where the hearsay declarant is not available as a witness, or (ii) where the hearsay declarant is already a witness in the case or an intended witness, or (iii) where the hearsay declarant is available as a witness in that she is available to be called to be examined onthestatement.” Guiding myself by the above, legal precedence, I find that the pictures, receipts and all other documents presented to the defendants by the plaintiff at ADR fall within exclusion to the hearsay rule and by reason of that these documents are admissible evidence the courtcanconsider in itsjudgment. Having therefore failed to challenge the cost incurred by the plaintiff in repairing his damaged vehicle, having equally admitting that D3 damaged the plaintiff’s vehicle, having failed to challenge that the defendants had been presented with the pictures, receipts and other documents at ADR, I find on the probability of possibilities that the plaintiff was able to prove his claim against the defendants and judgments in awarded infavour ofthe plaintiff forall thereliefs endorsed onhis writ ofsummons. H/H.NANA ADWOA SERWAADUA-ADONTENG (CIRCUITCOURTJUDGE)