Agyei Vrs Mari [2022] GHADC 96 (17 January 2022)

SITTING IN THE DISTRICT COURT AT WENCHI IN THE BONO REGION ON MONDAY THE 17TH DAY OF OCTOBER, 2022. BEFORE HIS WORSHIP ISSAH ABDUL-WAHAB ESQ (MAGISTRATE) KWABENA AGYEI OF NSAWKAW PLAINTIFF SUIT NO. A2/43/22 VRS: KWASI MARI OF NSAWKAW DEFENDANT JUDGMENT Plaintiff herein sued the defendant for recovery of cash the sum of Gh₵5,200.00 being medical bills for one Augustina Ameyaw to undergo surgical operation at KATH, for knocking Augustina Ameyaw down with a motor bike somewhere in June 2021. b. Cost and general damages for inconvenience and pain caused the victim (Augustina Ameyaw). The defendant pleaded not liable to the claims after same were read and explained to the defendant. The following issues were set down for trial; 1. Whether or not the defendant knocked the said Augustina Ameyaw with a motor bike. 2. Whether or not the plaintiff is entitled to the said Gh₵5,200.00. 3. Whether or not the plaintiff is entitled to any general damages. The plaintiff in his evidence in-chief told the court he is Kwabena Agyei and that he lives at Nsawkaw and is a mason. That he knows the defendant. That the defendant hit his (plaintiff) child with a motor bike. That the child was then sent to the hospital where she was admitted and later referred to the Komfo Anokye Teaching Hospital in Kumasi. So he had to look for money to hire an ambulance and for other expenses. Plaintiff said his wife (PW1) then followed to Kumasi. That after two (2) weeks the child was discharged and the bill from the hospital was GH₵6,800.00. That the defendant and his people then pleaded for the matter to be settled out of the Police Station, and promised to pay the said bill of Gh₵6,800. That the defendant pleaded for two (2) months to pay the amount and he (plaintiff) agreed. That the defendant later brought Gh₵2,500.00 to him (plaintiff) through the police. Then on another occasion the defendant paid another Gh₵2,300.00 making the total payment Gh₵4,800.00. Then three (3) months later the doctor told him (plaintiff) he will fix artificial bones and that will cost Gh₵5,200.00. Plaintiff said he gave the medical records to the police to be given to the defendant. That the defendant failed to pay the balance and the money he (plaintiff) needed for the artificial limbs. That is why he has come to court, claiming the Gh₵5,200.00. When told by the defendant that he (plaintiff) brought the medical bills to the police station and he (defendant) paid all, plaintiff said defendant paid Gh₵4,800.00 and left a balance of Gh₵2,000.00 and then the Gh₵5,200.00. When told that they (plaintiff and defendant) did not make any agreement that he (defendant) was to pay any other money or bill, plaintiff said that is not true and that the police inspector is his (plaintiff) witness. That they agreed that defendant will pay any further bills. The plaintiff’s first witness (PW1) was one Adubea Gladys, who said she is the wife of the plaintiff and that she lives at Nsawkaw and is a trader. That the defendant hit their child with a motor bike. The child was taken to the hospital in Nsawkaw and later referred to the Komfo Anokye Teaching Hospital in Kumasi. That two (2) weeks later they were discharged and given two (2) months to come back. That they were given a bill of Gh₵6,800.00 and the defendant paid Gh₵4,800.00 and left a balance of Gh₵2,000.00. When they later brought the additional Gh₵5,000.00 the defendant said he could not pay that one. Defendant had no questions for the witness. The second and final witness for the plaintiff (PW2) told the court he is Kofi Nsrah and that he is a farmer and lives at Nsawkaw. That he knows the parties. That the plaintiff is his younger brother. That the plaintiff’s daughter was knocked down by a motor bike about a year ago. That the matter went to the police station and whatever happened at the police station the plaintiff informed him (PW2). That recently the plaintiff told him (PW2) the doctor gave him (plaintiff) a bill for the operation of the girl which is Gh₵5,200.00. That plaintiff gave the paper to the police inspector handling the case at the Nsawkaw Police Station. That the police referred them to the bank manager of where the defendant works. That the manager said they had paid the first bill and that defendant was brought to them as a security man. That the Police Commander then told them they had finished taking care of the child. The plaintiff then said he will take the matter wherever he wanted. P. W.2 said, there the Police Commander said then the plaintiff should refund the Gh₵4,800.00 that the defendant paid to him (plaintiff). P. W.2 said he told the Police Commander they could not refund the money as they had used it for the treatment of the child. They then left the Police Station. When asked by the defendant where the receipt for the Gh₵5,200.00 is, pw2 said it was given to the police inspector Tawiah and not the commander. The defendant in his evidence-in-chief told the court he is Kwasi Mari and that he is a security man and lives at Nsawkaw. That he knows the plaintiff. Defendant said he had a motor accident involving the plaintiff’s child. That was in June 2021. Defendant said they went to the hospital. That it was plaintiff and the brother who took the child to the hospital. Defendant said he kept in touch with them. Then later they brought a medical bill of Gh₵6,800.00. Defendant said he asked for official receipt and the plaintiff brought receipts covering the Gh₵4,800.00. They could not provide any receipt for the rest of the Gh₵2,000.00. Then a year later he was there when the plaintiff came again that the doctor said he should pay Gh₵5,200.00 without any records from the doctor. Defendant said the child was treated and she recovered and the bill of Gh₵4,800.00 paid by him. Defendant said they did not agree that after the Gh₵6,800.00 they will bring any other bill. That there plaintiff said he will not agree and went back to the police. The police then invited him (defendant) and enquired if he (defendant) had any agreement with the plaintiff for the payment of any further bills and he (defendant) said no. plaintiff said he will not agree and so the police said then he should refund the bill that the defendant paid so they could take the matter to court. Defendant said he did not hear anything again until the plaintiff brought him the court summons. Defendant said he informed the police and they said they did not know that the plaintiff brought the matter to court. When asked by the plaintiff if he (defendant) was not aware he (plaintiff) took the child to the hospital every three (3) months, defendant said it was plaintiff who said the doctor asked that they come back for review. The court subpoenaed one Chief Inspector Bright Kyei of Nsawkaw Police Station who was the investigator of the said accident case. He told the court on the 24th day of June 2021, the police got information that a motor bike had knocked down a young girl of about eight (8) years old. Police proceeded to the scene but did not meet the rider and the victim. That they had been sent to the hospital. That the rider was treated and discharged but the victim was admitted for some time and later referred to the Komfo Anokye Teaching Hospital in Kumasi for further treatment. That the girl was later discharged from the hospital in Kumasi and the plaintiff brought a bill totaling Gh₵6,800.00 which was fully paid by the defendant. Then later plaintiff brought a paper saying the girl was to undergo surgery but there was no amount written on the paper. The witness said he took the parties to the District Commander where he told the plaintiff the medical of Gh₵6,800 had been fully paid. He told the plaintiff the police was not in a position to take any more Gh₵5,200.00 for him (plaintiff). The police then told plaintiff if that was the case, he (plaintiff) should bring the Gh₵6,800.00 back. That the defendant is a security man with the Nkroman Rural Bank and his monthly salary is only Gh₵400.00. That the defendant even took a loan to pay the bill of Gh₵6,800.00. The witness said from then they did not hear anything again until the defendant informed him that the plaintiff has brought him (defendant) to court saying he refused to take care of the child. When told that the defendant paid Gh₵4,800.00 out of the Gh₵6,800.00 the witness said that is not true and that defendant fully paid the Gh₵6,800.00. The witness said the plaintiff first took Gh₵2,500.00 and the last payment was Gh₵4,300.00 which was made on the 9th of February, 2022. When asked if they (police) did not ask him (plaintiff) to bring the Gh₵4,800.00 back, the witness said yes, that was when plaintiff came back claiming an additional Gh₵5,200.00 so they (police) asked him (plaintiff) to refund the Gh₵6,800.00 for the matter to go to court. After a very careful evaluation of all the evidence, it must be noted that both parties stated there was a motor bike accident that involved the defendant herein as the rider and the daughter of the plaintiff herein as a victim somewhere in June of 2021 and that the said child was sent to the hospital at Nsawkaw and later referred to the Komfo Anokye Teaching Hospital in Kumasi where the child was admitted for two (2) weeks, treated and discharged. This was whiles the said accident had been reported to the police at Nsawkaw who had taken up the matter and investigations commenced into same. This was the exact testimony of the plaintiff and his two (2) witnesses as well as the defendant herein and the police Chief Inspector Bright Kyei of the Nsawkaw Police Station who was in charge of the case. Again, it must be observed that the evidence before this court established that whiles the plaintiff’s child was been treated at the hospital the defendant kept in touch until the child was discharged from the hospital after two (2) weeks on admission and the plaintiff herein submitted a medical bill of Gh₵6,800.00 to the police as the cost of the treatment of the child and other expenses including the cost of the Ambulance that transported the child from Nsawkaw to the hospital in Kumasi. Here, it is instructive to note that the parties herein at the police agreed that the defendant bear the cost of the treatment of the child which was the said sum of Gh₵6,800.00 that the plaintiff presented. And it must be noted also that the Gh₵4,800.00 which the plaintiff submitted official receipts to cover was fully paid by the defendant out of the total of Gh₵6,800.00 that the plaintiff presented. This clearly from the evidence before this court was the parties’ decision reached at the police station which was to the effect that once the defendant paid for the treatment of the child, then the matter also ended since they all agreed that what happened was an accident. The defendant therefore paid all the Gh₵6,800.00 in two (2) installments to the plaintiff for the treatment in the presence of witnesses including the police at Nsawkaw who at the time were handling the investigations. The plaintiff though presented receipts for only Gh₵4,800.00 out of the Gh₵6,800.00 the defendant never the less paid all the Gh₵6,800.00 to the plaintiff. The police Chief Inspector from the Nsawkaw Police Station who handled the case, Chief Inspector Bright Kyei confirmed in court that defendant fully paid the cost of treatment of the child to the plaintiff. The witness (Police Officer) stated that the defendant made the payment in two (2) installments of Gh₵2,500.00 and then Gh₵4,300.00 to the plaintiff at the Police Station. Also, this court has observed from the evidence that the parties having agreed that the defendant pays the full cost of the treatment of the child, that was to end everything. It was on the basis of that that the defendant paid all the Gh₵6,800.00 to the plaintiff at the police station. With this understanding therefore, if the plaintiff again came claiming a sum of Gh₵5,200.00 in the name of the treatment of the child and which has no basis, such a claim in my considered view is not in good faith and clearly goes contrary to the parties agreement at the Police Station. It must be stated here and very clearly that if the plaintiff herein did not want any settlement of the issue, he should not have agreed and also should not have received the full payment of the medical bills. In that case he should have proceeded to court. However, for the plaintiff to have entered into the agreement and consequently benefited from same which is the full payment of his (plaintiff) daughter’s medical bills, and only thereafter to come to court, is obvious disingenuous on the part of the plaintiff. And this was the reason for the police request that he (plaintiff) refunds the said sum of Gh₵6,800.00 defendant made for the medical bills before the matter was taken to court. Finally, it must be observed that once the defendant fully paid for the treatment of the plaintiff’s child as per their agreement at the Police Station, the defendant had obviously performed his side of the agreement and for which this current claim of the plaintiff for the Gh₵5,200.00 is unfair, unreasonable and runs contrary to his agreement with the defendant. This is also so when the claim by the plaintiff that the said Gh₵5,200.00 is needed for a supposed surgery is not supported by any medical document. From the evidence therefore, I found the following as facts; 1. That there was a motor bike accident involving the defendant as rider and the daughter of the plaintiff who was knocked down. 2. That the matter was reported to the police after the victims were taken to the hospital. 3. That the plaintiff later submitted as medical bill of Gh₵6,800.00 to the police after the child’s treatment. 4. That the defendant as per the parties agreement at the police station, paid the Gh₵6,800.00 in full after the child was discharged from the hospital. The law generally is that the party who in his/her pleadings or writ of summons raise issues that are essential to the success of their case assumes the onus of proof. This position of the law is founded on the principle that says that “he who avers must prove”. See Faibi Vs State Hotels Corp [1968] GLR, 176. On the standard burden of proof, the Evidence Act 1975 (NRCD 323) has used the expression “burden of persuasion” in section 11 (4) that has defined as relating to each fact the existence or non-existence of which is essential to the claim or defence asserted”. The Act 323 provides further that the burden of persuasion requires a more by the preponderance of the probabilities which is also defined in section 12 (2) to mean the degree of certainty of belief in the mind of the court by which the court is convinced that the existence of the fact is more probable that its non-existence”. Relating the evidence as adduced herein to the law on the burden stated above, the plaintiff herein who claims the defendant owed him the Gh₵5,200.00 carried the burden of proving his claim. The plaintiff has however failed to prove or establish the said claim against the defendant and as required by law. It is therefore my considered conclusion that the plaintiff has failed to prove his claims against the defendant and same failed. The reasons for the above conclusion include; 1. That there was a motor accident sometime in June of 2021 involving defendant and plaintiff’s child. 2. That the child was taken to the hospital after the case was reported to the police. 3. That the plaintiff later submitted a medical bill of Gh₵6,800.00 at the police which the defendant was made to pay in full to end the matter. 4. That the said payment was made at the cost of the treatment of the child. 5. That the defendant does not owe plaintiff the said Gh₵5,200.00 plaintiff is claiming here in court. 6. That the plaintiff failed to prove his claim as required by law. The plaintiff’s case is accordingly dismissed. Cost of Gh₵500.00 for defendant and against the plaintiff. ……………SGD…………. ISSAH ABDUL-WAHAB (MAGISTRATE) 9