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 COURT GBESE ACCRA ON TUESDAY THE 5TH DAY OF NOVEMBER, 2024. --------------------------------------------------------------------------------------------------------------------- SUIT NO. A2/41/2019 ALBERT TETTEH ::: PLAINTIFF VRS. 1. EMMANUEL ADAMS ::: DEFENDANTS 2. FRANCIS ACHAAB 3. KARIM ABBISAH ----------------------------------------------------------------------------------------------------------- RULING ON APPLICATION FOR SUBMISSION OF 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 in Plaintiff’s favor. 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 proceed solely on the evidence the Plaintiff before this Court. This case started 12th February, 2019 before HW Afua Sackey, then HW Isaac Addo, 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 until 31st March. 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 court ruled pursuant to section 125 of the Evidence Act, 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 court finds that since he is not the author of the police report, the plaintiff 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 at ADR, 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 was made during ADR. 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 at ADR and the party to whom the documents were delivered does not dispute receiving the documents, then failing to reproduce the documents during trial after ADR was 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 presented to the defendants outside of the conventional trial, that is, at ADR, 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 or non-existence of a fact.” 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 hearsay evidence. Hearsay evidence is defined by Section 116(c) of Act 323 as follows: "Evidence of a statement other than a statement made by a witness while testifying in the action at the trial, offered to prove the truth of the matter stated". Hearsay evidence is not wholly inadmissible. There are statutory qualifications to the admissibility of hearsay evidence which are later discussed in this judgement. In NASSER VRS. MCVROOM [1996-97] GLR 467, this Court, speaking through Acquah JSC (as he then was) noted the statutory qualification for the admissibility of hearsay evidence when he said as follows: "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 per se..." 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 are not contested by means of appeal. Sections 118 to 134 provide the various exceptions to the hearsay rule, and section 118 specifically states as follows, "(1) For the purpose of section 117, evidence of a hearsay statement is admissible if a the statement made by the declarant would be admissible had it been made while testifying in the action and would not itself be hearsay evidence and b the declarant is (i) unavailable as a witness or (ii) a witness or will be witness subject to cross examination concerning the hearsay statement. (iii) available as a witness and the party offering the evidence has given reasonable notice to the court and to every other party of the intention to offer the hearsay statement at the trial and the notice gave sufficient particulars (including the contents of the statement to whom it was made and if known when and where to afford a reasonable opportunity to estimate the value of the statement in the action". Section 118 provides for the admission of first-hand hearsay evidence subject to conditions set out in the said section. In this regard, Pwamang JSC in a judgement of this Court dated 28th July, 2021 in Suit No.: J5/58/21 entitled: REPUBLIC VRS. HIGH COURT (CRIMINAL DIVISION), ACCRA, EX PARTE STEPHEN K. OPUNI (ATTORNEY GENERAL INTERESTED PARTY) said concerning first hand hearsays as follows: “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 on the statement.” 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 court can consider in its judgment. 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 in favour of the plaintiff for all the reliefs endorsed on his writ of summons. H/H. NANA ADWOA SERWAA DUA-ADONTENG (CIRCUIT COURT JUDGE)