Kwofie & 1 Another Vrs Mensah & 1 Another [2022] GHACC 94 (14 November 2022)

IN THE CIRCUIT COURT HELD AT BIBIANI ON MONDAY THE 14 DAY OF NOVEMBER, 2022 BEFORE H/H JOSHUA C. ABAIDOO THE CIRCUIT COURT JUDGE SUIT №. A10/1/21 1. GILBERTA KWOFIE 1ST PLAINTIFF 2. FRANCIS ARTHUR 2ND “ SUING FOR THEMSELVES AND THE FAMILY OF ADWOA NTOKOM VRS 1. GEORGE OWUSU MENSAH 1ST DEFENDANT 2. AKWASI TAKYI 2ND “ PLAINTIFFS PRESENT DEFENDANTS REPRESENTED BY 2ND DEFENDANT PRESENT ERNEST OWUSU-FORDJOUR YEBOAH FOR PLAINTIFF PRESENT FELIX OBIRI BOAHEN FOR THE DEFENDANTS JUDGMENT The plaintiffs issued a writ against the defendants jointly and severally on 5th August, 2020 for general damages of GHC 50,000 compensation for the death of plaintiff’s mother Madam Adwoa Ntokum alias Mary Ackah who was killed in an accident as a result of the negligence of the driver Akwasi Takyi then in charge of the vehicle number AW 3463- 11 on 20/12/2018 at Asempaneye township and any other order for cost. In the amended statement of claim of the plaintiffs they allege that the 2nd defendant was tried at the Bibiani Circuit court on 5/11/2019 and convicted on his own plea of guilty to offences of Careless driving and negligently causing harm. They also allege that the 1st defendant is vicariously liable to compensate the bereaved family and the surviving children of the deceased and further allege that the 1st defendant accepted liability and gave the family GHC 6,000 for the one week celebration pending further negotiations as to compensation but 1st defendant has refused to honour the compensation to the family and children of the deceased in spite of repeated demands including a letter dated 18th December, 2019 from the solicitor of the plaintiffs to the 1st defendant for the same purpose. The defendants in their joint statement of defence denied virtually every allegation in the plaintiffs’ statement of claim and stated that the GHC 6,000 that 1st defendant paid to the family of the deceased was the final compensation which was agreed on between the parties after a lengthy negotiations. The evidence of the plaintiffs is as stated in the witness statements of 2nd plaintiff and his witness PW1 Nana Achia Bema II. The 2nd plaintiff tendered the Police Accident Report on the Kia Trade Truck with Registration number AW 3463-11 in evidence which was admitted without objection and marked Exhibit A. The evidence of the defendants are as stated in the witness statements of 1st defendant and his witness DW1 Isaac Fuachie. Looking at the pleadings as well as the totality of the evidence led on both sides of the suit the defendants admit liability for the payment of compensation. The issues for determination raised by the plaintiff are; (i) Whether or not 2nd defendant, in the employ of 1st defendant admitted to negligently knocking down and killing Adwoa Ntokum at Asempaneye on 20/12/2018. (ii) Whether or not 1st defendant as the owner of the vehicle, numbered AW 3463- 11 is vicariously liable to compensate the bereaved family and the surviving children of the deceased. (iii) Whether or not the family of the deceased agreed to the payment of GHC 6,000 as final compensation. (iv) Whether or not the plaintiffs are entitled to their claims In the case of Bisi and Others v. Tabiri alias Asare (1987 - 88) 1 GLR 360 it was held that “the standard of proof required of a plaintiff in a civil action is to lead evidence as will tilt in his favour the balance of probability on the particular issue". The plaintiff in this suit is therefore required to lead sufficient evidence to tilt the balance of probability in his favour on all the issues raised in this matter. In resolving the issues raised I will start with the 2nd issue i.e. Whether or not 1st defendant as the owner of the vehicle, numbered AW 3463-11 is vicariously liable to compensate the bereaved family and the surviving children of the deceased. From the evidence there is no dispute that the 1st defendant is the person who put the 2nd defendant in charge of the KIA trade truck which knocked down and killed the victim Adwoa Ntokum. The laws of Ghana specifically The Road Traffic Act 2004, Act 683 as amended by the Road Traffic (Amendment) Act, 2008 (Act 761) and the Road Traffic Regulation 2012 (LI 2180) prohibit an owner and a person who has control or custody of a vehicle from permitting an unlicensed driver to drive a vehicle on the road. Section 53 of Act 683 as amended states as follows; Section 53; (1) Except as otherwise provided in this Act, a person shall not drive a motor vehicle of any description or class on the road unless that person is a holder of a driving licence authorizing the person to drive a motor vehicle Paragraph 6 of Exhibit A i.e. the Police Accident Report indicates that the driver of the vehicle i.e. the 2nd defendant had a temporary driver’s Licence which was issued on 24/12/2018 had an expiry date of 25/03/2019. By regulation 26(8) of LI 2180 a learner’s licence is valid for a period of 3 months from the date of issue which is renewable under regulation 26(9). Under regulation 26(10) a qualified driver or licensed instructor shall accompany a learner who is driving on the road or in a public place. During the cross examination of 1st defendant who gave evidence on behalf of both defendants on 2/08/22 the following transpired; Q: And you know that at the time of the accident 2nd defendant your driver did not possess a valid driving licence? A: No. I didn’t know Q: And that it was 4 days after the accident that you ensured that the driver’s licence was renewed. A: That is not true. I find from all the evidence before me that as at 20/12/2018 i.e. the date on which the accident occurred the 2nd defendant was unlicensed and therefore was not permitted by law to drive on the road. The court further finds that the temporary licence which for all intents and purposes was a learner’s licence was procured after the accident. I also find gross negligence on the part of 1st defendant to put a whole truck loaded with empty sacks in the hands a person to drive on the road without ensuring or checking whether or not he is validly licensed to drive that class of vehicle on the road. As regards insurance the applicable law is the Motor Vehicles (Third Party Insurance) Act, 1958 (NO 42). Section 3 provides that no person shall use, or cause or permit any other person to use, a motor vehicle unless there is in force in relation to the user of that motor vehicle such a policy of insurance or such security in respect of third party risks as complies with the provisions of the Act. The plaintiff alleges that their claim for insurance for the death of the victim was declined by the Insurance company which insured the accident vehicle on the ground that the policy did not cover unlicensed drivers. By the laws as outlined above it is mandatory for the owner or a person who has control over or custody of vehicles to ensure that those who are put in charge of those vehicles are duly licensed to drive those types of vehicles and that the vehicles are duly insured for such people to drive them on the road. The 1st defendant failed, refused or neglected to comply with those two mandatory requirements. Once an owner or the person in control of such a vehicle places it on the road as in the circumstance of the 1st defendant he endangers the motoring public as well as other users of the road including pedestrians. He therefore cannot escape liability when accidents occur. The Supreme Court per Amegatcher JSC in the case of Kwadwo Appiah vrs Kwabena Anane Civil Appeal No. J4/42/2019 stated that laws passed by parliament are there to be obeyed by all citizens and residents. Otherwise they become useless, lose their significance and defeat the mischief the passage of the law sought to cure. Our society is regrettably plagued by indiscipline, impunity and recklessness by drivers on the roads. This accounts for the reasons why this jurisdiction is classified as high risk in vehicular accident. It appears that the 1st defendant and his driver joined the bandwagon and flouted the laws regulating the use of vehicles on the road in the hope possibly to escape the monitoring eyes of the authorities. Unfortunately luck escaped the defendants and they fell into the long arms of the law. I hold that 1st defendant is vicariously liable for the actions of 2nd defendant and therefore liable to compensate the bereaved family and the surviving children of the deceased. On the issue of Whether or not 2nd defendant, in the employ of 1st defendant admitted to negligently knocking down and killing Adwoa Ntokum at Assempaneye on 20/12/2018, there is evidence on record (see Exhibit A) that on the stretch of the road where the accident occurred there are road signs indicating the presence of speed ramps and pedestrian crossing but the driver drove without regard to all these as well as the speed limits in townships. The driver was not available to negate the suggestion of his negligence since he owed a duty of care to pedestrians on the road. Paragraph 12 of Exhibit A states clearly that the 2nd defendant pleaded guilty to the offences of Careless and Inconsiderate driving and Negligently Causing Harm in this court differently constituted on 5/11/2019, he was sentenced to a fine of GHC 2,400 or in default 36 months in prison with Hard Labour and the fine was paid. In the case R. v. Moreau (1848) 11 Q. B. D. 1028, it was held that where A pleads guilty to a criminal charge and is convicted, the record of judgment upon this plea is admissible against him in a civil action as a solemn judicial confession of the fact. This proposition of the law was upheld in the case of Dwira v. Ocansey [1963] 1 G. L. R. 268. 1st defendant’s denial of this admission and his alleged absence from court on that day does not negate the fact of the admission. I hold that the 2nd defendant admitted to negligently knocking down and killing the victim. On the issue of Whether or not the family of the deceased agreed to the payment of GHC 6,000 as final compensation, it is common knowledge that in trial of fatal cases the advice of the Attorney General is sought and the charge preferred against the accused persons a based on the advice receive from the Attorney General. The court takes judicial notice of this as well as the fact that it usually takes a while for the advice to be received by the Police prosecution. It is clear that the accused who is the 2nd defendant in this suit was put before this court on 5/11/2019 a period of almost one year after the accident. This suggests that it took almost one year for the Police to receive the advice from the Attorney General’s Department. There is no evidence that the victim Adwoa Ntokum was buried one year after the accident. There is also no dispute that the defendants went to the family of the deceased to sympathize with them and held discussions with them toward the funeral. It is also normal that payments or contributions are made in such situations to assuage the feelings of the bereaved families. However, in the light of the attempt by the bereaved family to make claims for compensation by way of insurance claims makes it improbable that compensation for the death of the victim was discussed and paid even before the funeral and burial of the victim. To say that the family negotiated the full compensation with the defendants and arrived at GHC 6,000 which was paid almost one year before the 2nd defendant was put before court implies that the 1st defendant accepted that he was vicariously liable for compensating the bereaved family and even paid the compensation before the Attorney General’s advice was received. I find this to be very unlikely. I therefore hold that the family of the deceased did not agree to the payment of GHC 6,000 as final compensation. On the issue of Whether or not the plaintiffs are entitled to their claims, in the Rose v. Ford [1937] A. C. 826, H. L. it was decided that damages for loss of expectation of life could be recovered on behalf of the deceased's estate in an action under the Law Reform (Miscellaneous Provisions) Act, 1934 (24 & 25 Geo. 5, c. 41); and in Benham v. Gambling [1941] A. C. 157, H. L. it was decided that only moderate awards should be made under this head. Viscount Simon L. C. in the course of his speech in that case said at pp. 166- 167: "I would rather say that, before damages are awarded in respect of the shortened life of a given individual under this head, it is necessary for the Court to be satisfied that the circumstances of the individual life were calculated to lead, on balance, to a positive measure of happiness, of which the victim has been deprived by the defendant's negligence. If the character or habits of the individual were calculated to lead him to a future of unhappiness or despondency, that would be a circumstance justifying a smaller award." Lord Goddard is quoted by Viscount Simon L. C. in Benham v. Gambling (supra) at p. 168, H. L. as having pointed out when the case was before the Court of Appeal that, "stripped of technicalities, the compensation is not being given to the person who was injured at all, for the person who was injured is dead." The reasonable conclusion from the authorities above which were cited in the case of Atsyor v. Donkor and Another [1980] GLR 273-277 is that compensation under this head should be moderate. The deceased at death was aged 75 years. The defendants having already contributed GHC 6,000 toward the funeral I will make no order for compensation under this head because I think that GHC 6,000 in 2018 is a sufficient and reasonable contribution toward funeral expenses. Owing to the decline in the purchasing power of the Ghana cedi, I access compensation for the plaintiffs as follows; a. Loss of expectation of life GHC 5,000 b. Mental distress resulting from death of the victim GHC 10,000 c. General Damages for Negligence GHC 30,000 DECISION Judgment is entered for the plaintiffs for the recovery of compensation of GHC 45,000 with simple interest at the prevailing commercial Bank rate from the date of judgment till the date of final payment. Cost of GHC 5,000 is awarded in favour of the plaintiffs and against the defendants. ---------------------------------- JOSHUA C. ABAIDOO (CIRCUIT COURT JUDGE) 8