DOMAKYAAREH (MRS),J. A.

1. In this appeal, a battle for the recovery of the value of a burnt house and other valuables has been raging since 5^th October 2004 when the plaintiff/appellants filed their initial Writ of Summons and Statement of Claim against the defendants/respondents herein.

PLAINTIFF/APPELLANT’S CASE

2. The 1^st plaintiff/appellant is the owner of a building on plot No. 45 Block “A”, Derma, also identified as House No B.F. 103 Derma. The 1^st appellant rented out (4) four rooms in the said house to the 1^st Defendant/Respondent for the occupation of its employees.

The 2^nd Plaintiff/Appellant is a daughter of the 1^st plaintiff/appellant and she also occupied one room in the house from where she sold agro-chemicals. Other tenants rented the remaining rooms in the house and they all co-existed together.

For security reasons, and in particular to scare armed robbers from attacking the 1^st respondent’s premises, which was close to the said house, the 1^st respondent applied to the Ghana Police Service through the appropriate channels and the 2^nd respondent was detailed to provide security at the 1^st respondent’s premises. The 1^st respondent then permitted the 2^nd respondent to occupy one of the rooms the 1^st respondent rented from the 1^st appellant.

On the 26^th December, 2003 a fire broke out in the said House No B.F. 103 and the house got burnt with the tenants losing valuable properties. The appellants sued the respondents alleging that it was the 2^nd respondent who caused the fire and that the 1^st respondent was vicariously liable for the tortious act of the 2^nd respondent since it was the 1^st respondent which permitted the 2^nd respondent to stay in the house. In an amended Writ and Statement of Claim, the appellants claimed the following reliefs:-

(a) Recovery of the current market value of the 1^st plaintiff’s building on plot No. 45 Block “D” also identified as House No B.F. 103, Derma and the 2^nd plaintiff’s properties destroyed by fire as a result of the negligence of the 2^nd defendant who was in occupation of the 1^st plaintiff’s said building at the instance of the 1^st defendant, then the 1^st plaintiff’s tenant.

(b) Loss of use of the building described in relief (a) supra

(c) General damages for breach of agreement/contract

(d) An order of the court to compel the defendants to pay for the items and agro chemicals in the building which were burnt.

DEFENDANTS/RESPONDENTS CASE

3. The respondents denied total liability and in fact the 2^nd respondent stoically refused to cooperate or participate in the proceedings

The case went to full trial and the trial judge per his judgment delivered on 8^th October 2014 held that the appellants had not convinced him that it was the 2nd respondent who caused the fire that led to the destruction of the plaintiffs assets and other properties and that in any event, the 1^st respondent was not vicariously liable for the tortious acts of the 2^nd respondent even if same were proved against him. In other words, the plaintiffs lost the action at the trial court.

4. Aggrieved by same, they launched the instant appeal per their Notice of Appeal filed on 15^th October 2014, listing 8 grounds of appeal. These grounds of appeal are:-

(a) The judgment is against the weight of the evidence

(b) The trial judge failed to appreciate the fact that on the preponderance of probabilities, the plaintiffs made a better case hence the trial judge should have entered judgment for the plaintiffs/appellants.

(c) The trial judge erred in law in his conclusion that 1^st defendant is not vicariously liable for the tortious acts of the 2^nd defendant

(d) The conclusion by the trial judge that the 2^nd defendant was not negligent for the fire outbreak is not supported by the facts on record

(e) That the trial judge failed to consider the totality of the evidence and wrongly gave judgment against the plaintiff/appellants.

(f) The trial judge misdirected himself on which of the parties bear the burden of proof on the cause of the fire and hence the erroneous conclusion that the plaintiff failed to prove the cause of the fire.

(g) The principle of res ipsa loquitor was applicable in this case against the defendant but this the trial judge failed to apply in this case thereby resulting in a substantial miscarriage of justice.

(h) Additional grounds of appeal shall be filed upon receipt of the proceedings.

No additional grounds have been filed.

In their written submission filed on 2^nd June 2016, the appellants stated that they had abandoned ground (g) of the grounds of appeal. Ground (g) is therefore struck out as having been abandoned.

THE APPEAL

5. Counsel for the appellants argued grounds (a) (b) (d) (e) and (f) together. These grounds will now be evaluated. It is trite learning that every appeal is by way of rehearing. The legislative basis for this is Rule 8(1) of C.I 19 and there is an avalanche of case law testifying to the same. See for example, the case DJIN V MUSAH BAAKO (2007/2008) 1 SCGLR 686. The case law goes on to spell out the respective obligations of the appellant and the appellate court, especially when the appellant relies on the omnibus ground that the judgment is against the weight of the evidence as it the case in the instant appeal. The appellant must point out succinctly:

·         The lapses in the judgment complained against

·         The evidence on record which if applied in his favour could have changed the decision in his favour and

·         The evidence that has been wrongly applied against him

The appellants sought to comply with the above requirements in their Written Submission.

6. In TWAKUA V BOSOM (2001-2002) SCGLR 61, it is also directed that in a civil case such as this one, the appellate court has the duty to analyse the testimonies and all documentary evidence adduced at the trial before arriving at its decision, so as to satisfy itself that, on a preponderance of the probabilities, the conclusions of the trial judge are reasonably or amply supported by the evidence.

We shall do exactly that and nothing less. The combined effect of the five grounds of appeal argued together is an attack on the evidence on record and how the trial judge evaluated same. One of the main issues to be determined at the trial was what and who caused the fire outbreak.

7. DW1 Kwabena Anane and brother-in-law to the first appellant had testified that the attribution by the 1^st plaintiff/appellant of the cause of the fire to an electrical malfunctioning in the room of the 2^nd defendant/respondent could not have been the case because he had gone round the burnt building and had discovered a burnt hair dryer still fixed on one of the sockets just in front of Achiaa’s (2^nd plaintiff/appellant’s) room and the plug was on. See page 213 of the Record of Appeal.

He further testified that whilst the electrical wires in the room of the 2^nd plaintiff/appellant got completely burnt, in the room of the second defendant/respondent the main electrical wire there was intact except for only a partial burning of a wire at the ceiling. He continued to testify thus at page 215 of the Record of Appeal:

“The fire was not caused by the second defendant in my opinion. I know some agro chemicals are flammable. The stock in the second plaintiff’s room was agro chemical but I cannot say the quantity.”

8. The trial judge preferred and accepted the defendants’ version and rejected the plaintiff’s version. This is what he said at page 5 of his judgment which can be found at page 244 of the Record of Appeal.

“In my candid opinion, in respect of this issue, I am persuaded to believe the evidence of the 1^st defendant’s witness Kwabena Anane as against that of the plaintiff for the reason that I found Kwabena Anane as a more credible witness than the plaintiff as he (Kwabena Anane) had not much pressure on him to hide the truth of the matter from the court even though as a former employee of the 1^st defendant, he had already retired and therefore did not have any compelling reason to tell untruth in order to help out the 1^st defendant.”

9. Is the inference drawn by the trial judge born out of the evidence on record? The evidence of PW1 (the Firer Officer) is pertinent here. To all intents and purposes, the Fire Officer can be deemed to be a disinterested person in the whole affair as he has no relation with any of the parties. He is also the expert witness as far as the fire is concerned. On the other hand, the 1^st defendant’s witness, Kwabena Anane, DW1 is a former employee of the 1^st defendant. Indeed he was the Manager of the 1^st defendant when the incident happened and was actually an occupant of one of the rooms in the burnt property. On the balance of probabilities, as between the Fire Officer and this former staff of the 1^st defendant, whose evidence will command more credibility by way of having lack of interest in the matter?

10. Our considered view is that the Fire Officer’s evidence is more likely to be credible than that of DW1. In the case of DUMGYA VRS SPORTS COUNCIL OF GHANA [1974] 1GLR 249 the Court of appeal held at holding 3 that:

“The opinion evidence of a person who was neither an expert nor an eyewitness to the accident was inadmissible per se as being hearsay evidence.”

PW1 the Fire Service Officer, tendered Exhibit C- which is the Fire Report, dated 28^th December 2003. This can be found at pages 24 – 38 of the Record of Appeal. The investigation and analysis conducted by the Fire Service revealed that the cause of the fire was due to the negligence of Mr. Sampson Mensah, the 2^nd defendant. Here is the relevant portion of the Fire Report found at pages 28 -29 of the Record of Appeal.

“6.0 f. A careful and critical analysis of eye witnesses’ account and information received from tenants revealed that:

i. Smoke was first seen (by Margaret Ahiator) emanating from Mr. Mensah’s room.

ii. Mr. Mensah was in the house at the incipient stages of the fire evacuating his personal belongingsiii.

iii. Mr. Mensah failed to raise an alarm

iv. Mr. Mensah’s failure to respond to the enquires of Miss Ahiator as to why he was carrying his Television set is very suspicious

v. Mr. Mensah’s refusal to be interviewed by the investigators is questionable considering the fact that he is a tenant in the house. This coupled with Inspector Kwasi Mensah’s statement that he will not allow him to talk since ‘he may commit himself’.

Mr. Mensah denied having an electric stove but one was found in his room. The investigators are of the view that Mr. Mensah left his electrical appliances unattended due to the intermittent power cuts. He forgot to switch off the main socket, after power had been restored. The unattended electrical stove ignited a combustible material and also caused hot smoke and flames to be emitted. These (smoke and flames) were capable of igniting external objects.

7.0 CAUSE OF FIRE

The cause of the fire was due to the negligence on the part of Mr. Sampson Mensah”

11. In the face of this clear uncontroverted documentary evidence which was tendered and admitted in evidence without objection, the trial judge still decided not to believe the evidence of the plaintiffs. It is to be noted that the incident occurred on 26^th December 2003 and that the Fire Service Report was issued on 28^th December 2003 i.e. two days after the incident. PW1 the Fire Service Officer testified on 30^th October 2012, i.e. eight years 10 months after the event and yet the trial judge chose to give more weight to minor inconsistencies in the oral testimony as opposed to clear documentary evidence and throw the case of the plaintiffs overboard. It is trite learning that on any particular issue, if there exists contradictory evidence one oral and the other documentary, the documentary evidence is to be preferred. In DUAH VRS YORKWA [1993 – 94] 1 GLR 217 the Court of appeal held per holding 5 that “Whenever there was a written document and oral evidence in respect of a transaction, the court would consider both the oral and the documentary evidence and often lean favourably towards the documentary evidence, especially where the documentary evidence was found to be authentic and the oral evidence conflicting”.

12. This court is of the considered opinion that both the appellants and the respondents are interested parties to the suit, including DW1 and therefore are likely to offer self-serving evidence in support of their respective cases, and that PW1, the Fire Service Officer is the only disinterested party as far as the cause of the fire is concerned hence his evidence should carry more weight and probative value on that issue.

13. The 2^nd respondent apart from denying that he had an electrical stove in his room, refused to be interviewed by the Fire Service Investigators. His Boss also refused to allow him to be interviewed since “he may commit himself”. He also failed to participate in the proceedings despite being aware of same. The 2^nd respondent may well be within his constitutional right to remain silent but the legitimate inference to be drawn from such conduct is that he had something to hide. The trial judge did not provide any legitimate basis for rejecting expert evidence (Exhibit C) in favour of the evidence of a lay interested person, DW1. Grounds (a), (b), (d) (e) and (f) are thus sustained and accordingly upheld by the court.

GROUND C OF THE GROUNDS OF APPEAL:

The trial judge erred in law in his conclusion that 1^st defendant is not vicariously liable for the tortious acts of the 2^nd defendant

14. The trial judge held that the 1^st respondent was not vicariously liable for the tortious act of the 2^nd respondent since the 2^nd respondent was not working for the 1^st respondent. The appellants are up against this finding. Their contention is that the 1^st respondent’s liability for the 2^nd respondent does not arise in view of employment but because they permitted the 2^nd respondent to occupy the room they rented. This position of the appellants demonstrates a misunderstanding of the law on vicarious liability. The principle of vicarious liability arises in master/servant relationships or employer/employee relationships. See the case of LARYEA V ANNAN (1964) GLR 755 where the respondent was injured when a lorry in which he was a paying passenger was involved in an accident due to the negligence of the driver, one A. The trial judge held that A. was the appellant's servant (the appellant having admitted ownership of the lorry) and that they were jointly and severally liable to the respondent. On appeal it was submitted that the respondent's evidence did not establish the relationship of master and servant between the appellant and A. and therefore the trial judge had erred in holding the appellant vicariously liable.

In allowing the appeal, the Supreme Court held per Holding 1 and 2 thus:

“(1) the respondent's evidence at the trial merely showed that the appellant was the owner of the lorry and that A. was the driver of the vehicle some time before and at the time of the accident. Since the evidence failed to establish whether the appellant had the power of controlling A.'s acts and dismissing him for disobedience of orders, the trial judge erred in holding that the relationship of master and servant existed between the appellant and A.

(2) Even if the relationship of master and servant had been established no liability should have been attached to the appellant because the evidence failed to establish conclusively that A. was, at the date of the accident, acting within the course of his employment.”

15. In other words, to succeed on vicarious liability, one must prove that the one being held vicariously liable has the power of controlling the one who committed the tortious act and can dismiss him for disobedience of orders. Even where this master/servant relationship is established, vicarious liability cannot arise unless it is conclusively established that the one who committed the tortious act was at the time of the incident acting within the course of his employment.

The learned trial judge was thus right on his finding on this matter because the 2^nd respondent, being a police man was employed by the Ghana Police Service and not the 1^st respondent Bank. The 2^nd respondent was at all material times under the orders, command and control of the Ghana Police Service through its command structure. A master/servant relationship does not therefore exist between the 1^st respondent and the 2^nd respondent. Therefore the issue about the 1^st respondent permitting the 2^nd respondent to stay in the premises is a non-starter. Ground C of the grounds of appeal is therefore dismissed.

16. The appeal is thus partially upheld and partially dismissed. The part that is upheld relates to whose negligence caused the fire. This court has found this to be attributable to the 2^nd respondent.

To that extent the judgment of the trial court that the 2^nd respondent is not responsible for the fire is reversed. He is therefore liable to the appellants for reliefs (a) (b) and (d) as per the amended Writ of Summons found at pages 189 of the Record of Appeal. The appellants have not proved any breach of agreement/contract by the 1^st respondent hence the relief (c) on general damages for breach of agreement/contract is refused.

The part of the appeal that is dismissed relates to the issue of vicarious liability. This court upholds the decision of the trial judge that 1^st respondent is not vicariously liable for the tortious act of the 2^nd respondent.

Angelina M. Domakyaareh (Mrs)

(JUSTICE OF APPEAL)

E. K. Ayebi JA           I agree              E. K. Ayebi

(JUSTICE OF APPEAL)

Torkornoo (Mrs), JA I agree              G. Torkornoo (Mrs)

(JUSTICE OF APPEAL)