Squire Vrs Namang and Another [2022] GHAHC 16 (12 December 2022)

IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF JUSTICE (GENERAL JURISDICTION COURT 5) HELD IN ACCRA ON MONDAY THE 12TH DAY OF DECEMBER, 2022 BEFORE HIS LORDSHIP JUSTICE WILLIAM BOAMPONG, HIGH COURT JUDGE SUIT NO: GJ/0116/2022 EFFIE LENZ - SQUIRE PLAINTIFF HSE. NO. 17 MAHOGANY RD POKUASE ACCRA. VS 1. SOLOMON NAMANG DBS BUILDING SPINTEX ROAD ACCRA 2. DBS INDUSTRIES LIMITED DEFENDANTS DBS BUILDING SPINTEX ROAD ACCRA J U D G M E N T The Plaintiff issued her Writ of Summons claiming against the Defendant jointly and severally for the following reliefs: a. A declaration that the Defendants are liable for the damages caused to the Plaintiff’s vehicle. b. An order directed at the Defendants to fix the Plaintiff’s vehicle at the garage chosen by the Plaintiff and communicated to the Defendants. c. General Damages for inconvenience caused the Plaintiff. d. Special Damages of Eighty Three Thousand, Eight Hundred Sixty Ghana Cedis (GH¢83,860.00). e. Interest on relief (d) at the prevailing lending rate from the date of the accident till date of final payment. f. Cost including but not limited to solicitors fees. g. Any other reliefs that the Honourable Court deems fit. The 2nd Defendant was served with the Plaintiff’s Writ of Summons and Statement of Claim but the 2nd Defendant did not enter any appearance. On the 28th February, 2022, the Plaintiff applied for and obtained an Interlocutory Judgment against the 2nd Defendant on the reliefs as endorsed on the Plaintiff’s claim. The Court then ordered the Plaintiff to file her Witness Statement and served same and a Hearing Notice on the 2nd Defendant to enable the Court to commence Hearing on the case. Plaintiff duly served her Witness Statement and a Hearing Notice on the 2nd Defendant and the court commenced hearing of the case on the 18th July, 2022. Per the Plaintiff’s Witness Statement, the Plaintiff state as follows: She states that the 1st Defendant is a driver and employee of the 2nd Defendant who at the time of the accident was carrying out the duties under the employment of the 2nd Defendant. The 2nd Defendant is a Limited Liability Company registered under the laws of the Republic of Ghana. On the 27th Day of July 2021, as the Plaintiff was driving on the road in front of the offices of the Defendants which is adjacent to the main Spintex Road, the 1st Defendant in charge of 2nd Defendant’s vehicle and under the employment of the 2nd Defendant at the material time carelessly and negligently drove into the Plaintiff’s Ford Explorer vehicle with registration number, GS 3497-17. As a result, the 1st Defendant damaged the door, parts of the vehicles electrical systems as well as other components of Plaintiff’s vehicle. The Plaintiff particularized the 1st Defendant negligence in paragraph 6 of her Statement of Claim as follow: a. “The 1st Defendant, driver of the 2nd Defendant failed to exercise reasonable and due care whilst he was driving. b. Through the failure to exercise due care the driver ran into the Plaintiff’s Ford Explorer. c. The Plaintiff’s vehicle was damaged as a result of the negligence of the 1st Defendant’s driver who was in his line of duty and this has occasioned and continuance to occasion significant loss to plaintiff. The Plaintiff made a report of the accident to Manet Police Station. The police after their investigations placed liability on the 1st Defendant. The 2nd Defendant approached the Plaintiff and requested for invoices to ascertain the cost of fixing the damage caused by the 1st Defendant. According to the Plaintiff, she then obtained two invoices. The first from Tractafric Motors Ghana in the sum of Sixty Two Thousand, Four Hundred and Eleven Ghana Cedis (GH¢62,411.00) and the second from the sum Auto Jewelling in the sum of Forty Six Thousand, Five Hundred and Five Ghana Cedis (GH¢46,505.00). The Plaintiff avers that the police wanted to commence criminal proceeding against the 1st Defendant since the Defendants agreed to repair Plaintiff’s vehicle for her. Plaintiff therefore did not press upon the police to initiate the criminal proceedings. However the Defendants have failed, neglected and refused to fix the damage caused to the Plaintiff’s vehicle despite repeated demands. Plaintiff further avers that the damage caused her to lose certain major contracts she was working on since her clients had to terminate her contracts because she was unable to attend meetings because she had to be with the Defendants at the police station and other places. Plaintiff claims special damages of Eighty Three Thousand Eight Hundred and Sixty Thousand Ghana Cedis (GH¢83,860.00) against Defendants. Plaintiff particularized her claim for special damages at paragraph 18 of her Statement of Claim as follows: (a) Loss/Termination of Plaintiff’s contract with John/Kinney in the sum of GH¢36,000.00. (b) Loss/Termination of second contract with Meguma Limited in the sum of GH¢36,300.00. (c) DVLA inspection fee and eye test in the sum of GH¢390.00. (d) Legal Fees for engaging Defendant prior to suing in the sum of GH¢10,000.00. (e) Fuel for rounds to police station, DVLA, Garages – GH¢850.00. (f) Cost of lodging in the hotel in the sum of GH¢320.00 Total – GH¢3,860.00. Plaintiff avers that apart from the losses enumerated above, the damage to her vehicle is causing her great inconvenience. On the occasion when the doors of the vehicle got locked as a result of the accident, she had to park the vehicle at an unsafe place at Dansoman and lodged at a nearby hotel at a cost of GH¢320 per night. According to the Plaintiff, the 2nd Defendant once requested her to make her vehicle available at the Auto Jewelling garage for repairs but the 2nd Defendant or representative did not turn up for the said repairs. Plaintiff states that the 2nd Defendant later submitted a Report that it will pay GH¢37,305.00. This amount the Plaintiff saw will not cover the full repairs of her vehicle. The Plaintiff therefore rejected the said amount. The Plaintiff therefore prays per her reliefs as endorsed on her Writ of Sermons. The 2nd Defendant in this case refused to attend Court for the trial after several Hearing Notices were extended to it. The legal effect of the 2nd Defendant’s conduct is that she does not wish to contest the case. See the case of: Ankumah vrs City Investment Company Ltd [2007/08] 2GLR at page 5 Held: “A Court is entitled to give…judgment, as in the instant case, if the party fails to appear after notice of the proceedings has been given to him. For them, it would be justifiable to assume that he does not wish to be heard”. Since the 2nd Defendant refused also to appear in court to challenge the Plaintiff’s evidence whether through the evidence to be led by the 2nd Defendant or through cross-examination, the evidence led by the Plaintiff per her Witness Statement stands uncontested. See the case of:- Foli vrs Ayirebi [1966] GLR 627 S. C “when a party had made an averment and that averment was not denied, no issue was joined and no evidence need to be led on that averment. Similarly when a party had given evidence of a material fact and was not cross- examined upon, he need not call further evidence of that fact”. The 2nd Defendant refused to appear in Court to contest the case after several invitation was extended to it. In law the 2nd Defendant is deemed to have admitted the evidence adduced by the Plaintiff in this trial since same stands uncontested. I hold therefore that the facts adduced on the records by the Plaintiff is not contested. In law also when an employee in the course of his work or line of duty for the employer, caused damage to a third party, liability is fixed on the employer. As long as the employee was not on the frolic of his own. See the case of: Attorney General vrs Dadey [1971] 1GLR 228. Plaintiff was able to establish on the records that the 1st Defendant who is the employee of the 2nd Defendant caused the accident while he was in the course of duty of the 2nd Defendant. The 2nd Defendant is therefore vicariously liable for the acts of the 1st Defendant. The 2nd Defendant in the instance case too cannot complain against the Court that the Court had breached to rules of natural justice since the 2nd Defendant refused to attend this trial when Hearing Notices was served on him. See the case of: The Republic vrs. High Court (Fast Track Division) Accra Ex parte: State Housing Company Limited NO2. Koranteng – Amoako - Interested Party [2009] SCGLR at 190 Per Georgina Wood C. J (as she then was) “A party who disables himself or herself form being heard in any proceedings cannot later turn around and accuse an adjudicator of having breached the rules of natural Justice” On the unchallenged facts of this case on the records therefore I enter judgment for the Plaintiff against Defendants for the reliefs as endorsed on Plaintiff’s Writ of Summons on relief c on General Damages for the Plaintiff against the 2nd Defendant. COST: I award cost of GH¢30,000.00 against 2nd Defendant in favour of plaintiff. (SGD) WILLIAM BOAMPONG (JUSTICE OF THE HIGH COURT) COUNSEL: BAFFOUR GYAWU BONSU ASHIA ESQ, FOR THE PLAINTIFF FREDERICK GURAH SAMPSON ESQ, FOR THE DEFENDANT 8