IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
CAPE COAST - A.D 2019
ALHAJI SALEM & ANOR - (Defendant/Appellant)
G.P.R.T.U. PER THE CHAIRMAN (AUGUSTINE MENSAH) - (Plaintiff)
DATE: 26TH JUNE 2019
CIVIL APPEAL NO: H1/36/18
JUDGES: IRENE C. LARBI (MRS) J.A. (PRESIDING), L. L. MENSAH J.A., ANGELINA M. DOMAKYAAREH (MRS) J.A.
JOSEPH KAPONDE FOR DEFENDANTS/APPELLANTS
DANIEL ARTHUR FOR PLAINTIFF/RESPONDENT
LAWRENCE L. MENSAH, J.A.:
This is an appeal which comes from the Defendants/Appellants hereinafter referred to as the Defendants against the judgment of the High Court Cape Coast dated the 16th day of June 2017 in favour of the Plaintiff/Respondent who will be referred hereafter as the Plaintiffs.
The appeal is about a running down action the facts of which are as follows:- The Plaintiff private road transport company owned Mercedes Benz Sprinter bus with Registration Number GS 3934 – 12 which was a commercial vehicle plying between Mankesim in the Central Region and Obuasi.
On the 20th day of November, 2013 at about 7.00 pm while the Plaintiff’s vehicle was on its journey from Obuasi to Mankessim, the 2nd Defendant then, in charge of a DAF articulated truck with Registration Number GR 132 N loaded with 600 bags of dried cocoa beans, was travelling from New Edubiase with two passengers on board to Tema. On reaching a spot at Assin Asamankese on the Kumasi-Yamoransah road, the 2nd Defendant driver overtook the Plaintiff’s Mercedes Benz vehicle which was in front of the DAF Truck. In course of overtaking the Plaintiff’s vehicle, the 2nd Defendant saw another articulator truck coming from the opposite direction. Sensing danger, the 2nd Defendant swerved to avoid a head-on collision with the on-coming articulated truck, and in the process, hit the Plaintiff’s vehicle. The impact caused the Plaintiff’s Mercedes Benz bus to hit a Mitsubishi L 200 Pick-Up vehicle with Registration No. GR 1839 – 13 driven by one Ofosu Asare and a Nissan Urvan Bus with Registration Number GT 9986 – Z driven by one Samuel Takyi whose two vehicles were moving from the opposite direction.
It is the claim of the Plaintiff that all the vehicles including his Mercedes Benz Sprinter bus were extensively damaged as a result of negligent and careless driving of the 2nd Defendant. According to the Plaintiff, as a result of the accident, it was denied its source of income from the use of the vehicle from November, 2013 to 30th March 2014. The daily sales of the vehicle was GH¢200.00 which was six days in a week within which the damaged bus was repaired bringing the total loss of income to GH¢22,200.00.
Finally Plaintiff said the 2nd Defendant was arraigned at the District Court, Assin Foso on the charge of careless and inconsiderate driving. Having pleaded guilty to the charges, the 2nd Defendant was convicted and sentenced 80 penalty units or in default 6 months IHL.
In their defence, the Defendants stiffly resisted the claim of the Plaintiff and counterclaimed for inter alia a declaration that it was rather the Plaintiff’s driver’s negligent driving which resulted in the accident and general damages for negligence.
The side of Defendant’s case is that it was rather the Plaintiff’s bus driven by one Yaw Asare which overtook the 1st Defendant’s DAF truck. In the process of overtaking the DAF Truck, another articulator truck emerged from the opposite direction. This forced the 2nd Plaintiff to manouvre his vehicle in front of the 1st Defendant’s DAF Truck. The Defendants said this forced the Plaintiff’s bus to stop suddenly. In a bid by 2nd Defendant to avoid hitting the rear portion of the Plaintiff’s bus, he drove off the road. It was the articulator truck which emerged from the opposite direction which “made contact with the Plaintiff’s bus, and this resulted in the accident”.
2nd Defendant said after the accident he was placed in police custody and he was advised by the police to plead guilty. That was the time he had no access to a lawyer or his vehicle owner the 1st Defendant.
After examination of the evidence of each of the parties at the court below, the learned trial Judge found for the Plaintiff, whereupon the Defendants appealed to this Court.
Grounds of Appeal:
The following grounds of appeal were filed by the Defendants:
1. That the judgment was against the weight of evidence adduced at the trial.
2. The learned Judge erred in her conclusions and computation of GH¢200.00 daily sales and 90 days period for loss of use of Mercedes Benz bus with Registration No. GS 3934 – 12.
3. The failure of Plaintiff/Respondent to introduce the insurer or the mechanic who repaired Mercedes Benz with Registration No. GS 3934 – 12 to give evidence in respect of the period used for the said repairs was fatal to Plaintiff/Respondent’s case.
Although the Defendants intimated that further grounds of appeal may be filed, no other grounds were filed by Defendants.
Before tackling the specific grounds of this appeal, the learned counsel for the Defendants made a huge discourse on the burden of proof and it is necessary to briefly touch on this. Counsel mentioned the burden of proof as expounded under sections 11(4) and 12 of the Evidence Act, 1975 NRCD 323 which counsel quoted in extenso and which provided that the standard of proof is by the preponderance of the probabilities. Counsel confirmed the above by reference to several cases such as In re Ashaley Botwe Lands: Adjetey Agbosu and Others vs. Kotey and Others (2003-2004) SCGLR 429 Majolagbe v. Larbi (1959) GLR 190; Ababio v. Akwasi (1994-95) GBR 774; Adwubeng v. Domfe (1996-97) SCGLR 660 and the old Kodilinye v. Odu (1935) 2 WACA 366. The relevance or otherwise of the above cases and sections 11 & 12 of the Evidence Act will be touched as we consider the grounds of the appeal.
The first ground of appeal is that the judgment is against the weight of evidence adduced at the trial.
In his argument on this ground of the appeal, counsel for Defendants submitted that the parties made claims of negligence against each other. Counsel argued that in the accident, the vehicle of the Plaintiff was slightly damaged and was driven to the police station. This is against the story of the Plaintiff that the vehicle was towed to the police station because same was extensively damaged. Counsel contended that the failure of the Plaintiff to take the accident vehicle from the police station was not due to any serious damage to the vehicle but due to challenges regarding proper documentation or whatever which all had to do with lawful detention by the police.
It is the further argument of Defendants’ counsel that the Plaintiff failed to lead any evidence to prove that its vehicle was so seriously damaged that it had to be towed for repairs for 111 days. Counsel contended that since the Defendants challenged the Plaintiffs on the averment that the vehicle was not damaged, it was incumbent on the Plaintiff to lead the requisite evidence since the burden of persuasion shifted to the Plaintiff. Counsel said all that the Plaintiff did was to rehash its witness statement and pleadings, especially as the Plaintiff relied on re ipsa loquitur.
Counsel further contended that the Plaintiff ought to have “shown or exhibited the photograph of their car so mangled”. And that even though counsel for Appellant challenged Plaintiff to produce a photograph of their vehicle, it failed to do so.
Counsel lamented that “the introduction of a further witness by the Plaintiff/Respondent such as a passenger on their vehicle, or the police who visited the accident scene and as conversant with the facts of the accident, would have resolved these issues”.
Counsel also expressed his misgivings about the “over reliance of the trial judge on the police report on the accident and the plea of guilty by the 2nd Defendant to a charge of negligence”. The Defendants said they therefore reject the over reliance of these pieces of evidence from the criminal court because as a civil trial, the learned trial judge should have given very little weight to the criminal trial in which 2nd Defendant pleaded guilty. Counsel referred to the case of Yamusa v. Mahama (1991) 1 GLR 549. Counsel said the 2nd Defendant did not have the benefit of being represented by a lawyer at the trial when he was arraigned before the District Magistrate, Assin Fosu hence his pleading guilty.
Plaintiffs Submission Against Defendants’ Arguments:
In his submission against the Defendants’ argument as isolated above, the learned Plaintiff’s counsel argued that the law is settled that when an Appellant alleges that judgment is against the weight of evidence, the burden is cast upon the Appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment appealed against. Counsel refers to the case of Djin v. Musa Baako (2007-2008) SCGLR 686 in support.
Counsel also submitted that the appellate court must not disturb the findings of facts made by a trial court unless the judgment was not wholly supported by the evidence on record or same was perverse or the trial court took into account irrelevant materials when evaluating the evidence.
Counsel referred to In re Okine (Decd.); Dodoo & Another v. Okine & Others (2003-2004) 1 SCGLR 582 at 607 and Amoah v. Lokko & Alfred Quartey & Others (2011) 1 SCGLR 505. The relevance or otherwise of these cases to this appeal would be considered later in this judgment. Suffice it to say here that the learned counsel has stated the correct position of the law that since the Defendants have stated in their grounds of appeal that the judgment is against the weight of evidence, the onus rests on the Defendants to point out the lapses in the judgment. At the same time a duty is cast on the appellate court as held in the case of Tuakwa v. Bosom (2001-2002) SCGLR 61 at 65 per Sophia Akuffo, JSC (as she then was) that “In such a case although it is not the function of the appellate court to evaluate the veracity or otherwise of any witness, it is incumbent upon an appellate court to, in a civil case, analyse the entire record of appeal, taking into account all the testimonies and documentary evidence adduced at the trial before it arrives at its decision, so as to satisfy itself that, on the preponderance of the probabilities, the conclusions of the trial judge are reasonably and amply supported by the evidence”.
In his submission against the argument of Defendants’ counsel that the trial Judge relied heavily on Exhibit “A” the Police Accident Report and Exhibit “B” the proceedings on the conviction of the 2nd Defendant by the District Court, Plaintiff’s counsel contended that this argument is not supported by the record of appeal.
We entirely agree with Plaintiff’s counsel that since the Defendant did not object to the tendering of the Police Accident Report Exhibit “A”, found at page 24 of the record of appeal, the trial court was bound to factor same in the evaluation of the evidence. This is because, as contended by the Plaintiff’s counsel, Exhibit “A” emanated from Assin Manso police, and the proceedings Exhibit “B” from the District court, and same prepared by officers of the Ghana Police Service and the court respectively. Same are therefore admissible under section 37(1) of the Evidence Act, 1975 (NRCD 323). Section 37(1) provides that:
It is presumed that official duty has been regularly performed.
The Defendants never professed any evidence to displace the Police Accident Report and the court proceedings that same were in anyway, tainted with fraud, or not coming from proper custody. Institutions such as the police and the courts are presumed to have conducted their official duties with a certain degree of regularity. As Dotse JSC cautioned in the case of Seidu Mohamed vs. Saanbaye Kangberee (2012) 2 SCGLR 1182 h.6 Per curiam:
The least the courts of law can do is to ensure that institutions of State mandated to perform statutory duties are not duly maligned by unsubstantiated allegations of impropriety…
In the instant appeal, the quarrel of the learned Defendants’ counsel with Exhibit “A” the Police Accident Report and Exhibit “B” the Court proceedings is that the trial Judge put too much emphasis on same. The record of appeal shows that apart from the bare statement of defence and their witness statements, the Defendants had never helped the trial court in any other way. Indeed Exhibit “A” shows that two other passengers (presumably the driver’s mate and one other passenger) were on board the Defendants’ vehicle on that 20th day of November 2013 when the accident occurred. Did not the 1st Defendant vehicle owner see it prudent to get those two other passengers to call them as witnesses? Another question is did not the 2nd Defendant driver give a statement to the police after the accident and the following day he was admitted to police enquiry bail? The record of appeal also shows that the 1st Defendant vehicle owner of the DAF Truck visited the accident scene with the police investigator as he himself admitted under cross-examination.
One other submission of Defendants’ counsel that need to be touched on is on the blame of the 2nd Defendant on his inability to procure a lawyer at the District Court which made him to plead guilty simpliciter for the charge of careless and inconsiderate driving. According to 2nd Defendant, he was in police custody and was not granted bail until he was arraigned before court: This is averred in paragraph 10 of the statement of defence found at page 13 of the record of appeal as follows:
In further answer to paragraph 13 the 2nd Defendant says that he was in police custody and was not granted bail until he was arraigned before court and was advised that if he pleads guilty he would only have to pay a fine in order to have his freedom (our emphasis).
In sharp contrast to paragraph 13 of the statement of defence captured above, 2nd Defendant in paragraph 12 of his witness statement found at page 38 of the record of appeal has this to say:
I and the Sprinter driver (2nd Plaintiff) were locked up till the following day when our statements were obtained and were granted Police Enquiry Bail. (our emphasis).
And in paragraph 15 of the same witness statement the 2nd Defendant confessed that “In court I pleaded guilty because I was also compelled by the reckless driving of Plaintiff’s driver to overtake the car ahead of me when confronted with pot holes”.
Finally at page 70 of the record of appeal, the 2nd Defendant who had the propensity to change his story about the cause of the accident, and why he was convicted by the District Court, Assin Fosu has this to say under cross-examination by Plaintiff’s counsel:
Q. At the court you were charged with carless and inconsiderate driving for which you pleaded guilty.
A. Yes, When the accident occurred I went to the police station. I was locked up from Friday to Monday. I had no phone to call the 1st Defendant and my family members. This is why I pleaded guilty to the charge. (our emphasis).
Q. Before the District Court, Assin Fosu where you were arraigned you never gave this explanation.
A. That is true.
Q. I put it to you that this explanation you have given to this court for pleading guilty is an afterthought.
A. It is not an afterthought. As I said because I could not reach the 1st Defendant and my family that is why I pleaded guilty to the charge.
The frequent changes of the 2nd Defendant’s reason why the accident occurred and why he pleaded guilty would lead a trial court to find against the Defendants. How can the same 2nd Defendant say in one breath that he and 2nd Plaintiff were admitted to police enquiry bail the following day after the accident. And at the same time say under cross-examination that he was in custody from Friday to Monday and had no phone to call his family members, hence he pleaded guilty to the offence at the District Court.
Under the same cross-examination minutes later, the 2nd Defendant said he could not contact the 1st Defendant vehicle owner and his family hence his pleading guilty to the offence. This evidence of the 2nd Defendant was contradicted by his own vehicle owner the 1st Defendant that 2nd Defendant was admitted to police enquiry bail the following day that is 21st November 2013. It was however on 20th day of October 2014 that the 2nd Defendant was arraigned before court where he pleaded guilty for being the cause of the accident. That was exactly eleven months after the accident. What this means is that nothing or no-one operated on the mind of the 2nd Defendant before he pleaded guilty, but it was a voluntary act of his which he was desperately trying to deny in the civil case.
Since there is a massive conflict and inconsistencies in the evidence of the 2nd Defendant as to the cause of the accident which he craftly engineered to mislead the court, the learned trial Judge was right to find against the Defendants. As the trial Judge rightly puts it at page 107 of the record of appeal:
The second Defendant gave different versions of his case. In his pleadings, he said he was advised to plead guilty so that he would only have to pay a fine in order to get his freedom, but he changed his story in his evidence to say that he pleaded guilty because “he was compelled by the reckless driving of the Plaintiff’s driver to overtake the car ahead of him when confronted with potholes”. This version of the 2nd Defendant compels me to conclude that the second Defendant was not a reliable witness and was only trying to escape liability. The Defendants were entitled to displace the prima facie evidence of negligence but in my view they failed to.
This primary finding of fact by the learned trial Judge that the accident was caused by the 2nd Defendant is unassailable. This is because the Defendants failed to match the Plaintiff with a more cogent and convincing evidence to displace the iron-clad intergrity of the Plaintiff’s case. Indeed as aforementioned earlier, the Defendants lined up an impressive array of cases about the burden of proof such as In re Ashalley Botwe Lands; Adjetey Agbosu & Others v. Kotey & Others (supra); Majolagbe v. Larbi (supra) West African Enterprise Limited vs. Western Hardwood Enterprise Ltd. (1995-96) 1 GLR 155 at 157; Ababio v. Akwasi (supra) Adwubeng v. Domfeh (supra) and Kodilinye v. Odu (supra).
Throughout the record of appeal, the Defendants did not profess a single evidence apart from their pleadings to move their case forward. Whereas as aforementioned, the Plaintiff successfully tendered Exhibits “A”, the “Police Accident Report” and Exhibit “B”, the Court proceedings of the Assin Fosu District Court in which 2nd Defendant pleaded guilty, the Defendants failed to lead any other evidence, apart from the bare statement of defence and their witness statement, the latter of which is full of contradictions and conflicts, particularly the evidence of the 2nd Defendant as aforementioned.
Ironically, the Defendants’ counsel in his written submission rather accused Plaintiff of merely rehashing the contents of its witness statements and pleadings.
Further, counsel for Defendants contended that “the Respondent ought to have shown or exhibited the photograph of their car so mangled especially as they relied on the doctrine of res ipsa loquitur. This argument of the Defendants’ counsel has no legal foundation that the Plaintiff ought to have exhibited photograph of the vehicle it claimed was extensively damaged. We do not know which section of the Road Traffic Act, 2004 (Act 683) or any other law which mandates a Plaintiff to tender the pictures of his accident vehicle, failing which the case would not succeed. The extent of the damage of Plaintiff’s vehicle and its consequence would be considered in the last two grounds of appeal.
It is as if the Defendants forgot that they had counterclaimed for a declaration that the Plaintiff’s driver was negligent in driving the said vehicle on the said date which resulted in the accident and general damages for negligence and costs. What this means is that the Defendants cannot pretend that they have no burden to prove their counterclaim, since same is ranked equally as a separate and independent action against the Plaintiff. Indeed all the cases which were lined up by the Defendants’ counsel on the burden of proof in a civil action caught the Defendants in the web of their woeful lack of leading evidence to back their counterclaim. It is in the same vein why the Defendants submission that the Plaintiff failed to call the investigating officer No. 37799 G/Cpl. Mark Owusu and the drivers of the other two vehicles is of no moment. This is because all those people were available for the Defendants to summon them to the trial court to testify for them, if they found their evidence of probative value. And since the Defendants failed to marshal any evidential resources they should stop blaming the trial judge for their weak and groggy case.
Apart from this, section 127 of the Evidence Act has exploded the argument in favour of the trial court’s correct reception of Exhibit “B” the court proceedings at the Assin Fosu Magistrate Court where 2nd Defendant was sentenced to a fine of 80 penalty units or in default 6 months IHL. Section 127 provides:
Evidence of a final judgment in a criminal action of a Court in Ghana adjudging a person guilty of a crime is not made inadmissible by section 117 when offered to prove any fact essential to the judgment.
From section 127(1), the conviction of the 2nd Defendant in this instant case is a fact which has been proved. It is therefore admissible. See Pieterse vs. Amankrah (1982-83) GLR 785 and Nunoofio vs. Nunoofio (1989-90) 1 GLR 683.
Finally on this issue of admitting the conviction of the 2nd Defendant into evidence under section 127(1) of the Evidence Act, Prempeh J in the case of Dwira v. Ocansey (1963) 1 GLR 268 h. 1 has this to say:
Where a person pleads guilty to a criminal charge and is convicted, the record of judgment upon his plea is admissible against him in a civil action as a solemn judicial confession.
Prempeh J drew on the case of R v. Moreau (1848) 11 Q.B.D. 1028. In the case of Dwira v. Ocansey (supra), the Plaintiff’s vehicle ran into the Defendant’s car while the latter was negotiating a curve. The Defendant was subsequently convicted of careless driving on his own plea. In an action against the Defendant for damages, for his vehicle and loss of use, the Defendant objected to the record of his plea and criminal conviction being admitted in evidence.
Clearly from the above several decided cases and section 127(1) which is a potent statutory provision, the Defendants cannot wriggle themselves out of the solemn confession of guilt of the accident on that 20th November 2013 for which the learned trial Magistrate convicted him on his own plea simpliciter.
Finally on this ground of the appeal, Defendants counsel referred to the case of Yamusah v. Mahama and Another (supra) and made same available to the Defendants to take cover under that case. It is the argument of Defendants’ counsel in his written submission that “the court held that the proof of the criminal court on negligence was not conclusive evidence of liability for negligence”. However the learned Plaintiff’s counsel in reply demurred against the argument of the Defendants’ counsel. Counsel for Plaintiff contended that the trial Judge at page 106 of the record of appeal factored the judgment of Benin J (as he then was) in Yamusah v. Mahama (supra) before coming to her decision that the 2nd Defendant was responsible for the accident of that night.
As an appellate court with the luxury to review the entire evidence on record, we think the trial judge is right to reach her conclusions. This is because all the parameters conducive to safe driving have been breached by the 2nd Defendant driver. First he was overtaking in town. Secondly as a driver driving in the night where visibility was reduced considerably, 2nd Defendant ought to have exercised due care and attention. It is immaterial whether or not there was street light. All these and other particulars of negligence found at page 3 of the record of appeal speak against the Defendants’ case.
We have carefully looked at the competing submissions traded by both counsel on the first ground of this appeal that the judgment is against the weight of evidence. We think the Defendants counsel failed to convince us why the trial court’s findings should be overturned. In the result, this ground of the appeal is hereby dismissed.
The next two grounds of the appeal were lumped and argued together. Ground 2 is:
2. The learned judge erred in her conclusions and computation of GH¢200.00 daily sales and 90 days period for loss of use of Mercedes Benz Bus with Registration No. GS 3934 -12 and
3. The failure of Plaintiff/Respondent to introduce the insurer or the mechanic who repaired Mercedes Benz Bus with Registration No. GS 3934 -12 to give evidence in respect of the period used for the said repairs was fatal to Plaintiff Respondent’s case.
On this combined grounds of the appeal, the learned Defendants’ counsel submitted that assuming the Defendants were liable for the accident, the burden of proving GH¢200.00 per day which the Plaintiff said its vehicle was earning per day rests with the Plaintiff. Counsel contended that the Plaintiff failed to prove that its vehicle was making GH¢200.00 a day for 90 days. Counsel argued that the Plaintiff gave conflicting figures of 111 days of loss of use and later on 90 days which the trial Judge accepted. Counsel said the learned trial court failed to disclose the formula she used in her computation, particularly since Defendants stated that the Plaintiff’s car was impounded for some time at the police station for investigation.
It is the further submission of Defendants’ counsel that the conflicting days within which the Plaintiffs vehicle was repaired would have been solved by inviting the insurer who repaired the vehicle so that the insurers can produce the certificate of its handover after the repairs. Finally, the Defendants’ counsel contended that the Plaintiff failed to indicate at what point of time the Plaintiff’s vehicle was taken for repairs and the time same was put back on the road.
In reaction to the above argument by the Defendants’ counsel, learned Plaintiff’s counsel submitted that the trial judge was right in her assessment and computation of the number of days for los of use and the amount of money awarded for same, given the circumstances of the case.
Reproducing a portion of the Plaintiff’s evidence (wrongfully tagged PW1) under cross-examination by Defendants’ counsel, Plaintiff’s counsel said the Plaintiff vehicle owner Chairman Augustine Mensah gave the capacity of the damaged vehicle, the two destinations between which the vehicle plied, the amount of GH¢200.00 made per day between Obuasi and Mankesim etc. Counsel argued that when the Plaintiff claimed 111 days for loss of use, the trial court settled on 90 days. Counsel quoted from a number of decided cases to drive home his point such Ansah v. Baiden (1976) 1 GLR 494; Aboagye v. Quartey & Anor. (1991) 1 GLR 491 and West African Bakery vs. Miezah (1972) 1 GLR 78.
We have considered the argument of both counsel on the two last grounds of appeal as to whether or not the Plaintiff is entitled to damages for loss of use of its accident vehicle and whether or not the Plaintiff has led enough evidence to merit the award bestowed on it by the trial judge against which the Defendants appealed.
The law is settled that in a running down action such as the instant appeal, once the trial court found as a fact that it was the 2nd Defendant’s negligent driving which caused the accident, the Defendants cannot escape liability.
The main beef of Defendants argument is that the Plaintiff’s vehicle was not extensively damaged. Secondly, the said vehicle could not have been off the road for the 90 days loss of use as found by the trial Judge. Unfortunately, the Defendants’ counsel with all due respect, seemed not to appreciate the totality of the evidence in the record of appeal. Throughout the pleadings and evidence, Plaintiff said after the 2nd Defendant was overtaking him and another articulator emerged from the opposite direction, the 2nd Defendant swerved to avoid a head on collision with the incoming articulator and in the process hit the Plaintiff’s Benz bus. The Benz bus in turn hit two other vehicles coming from the opposite direction because 2nd Plaintiff lost control of the vehicle due to the impact of 2nd Defendants inconsiderate and negligent driving. This explains why the damage to the Plaintiff’s vehicle was so extensive. Same was captured by the Vehicle Examiner’s Report in Exhibit “A”, contained in the Police Accident Report as follows:-
Nearside front fender, nearside front door, rear door, nearside entrance door and off-side body panel buckled; nearside front suspension bent; front bumper broken; nearside headlight smashed; engine sump broken with engine drain off oil, engine seat torn, fan blade broken, wind glass smashed.
According to the Vehicle Examiner, “the vehicle could not be road tested due to extent of the damage caused by the accident”. From Exhibit “A” which contains the Vehicle Examiner’s Report, the Plaintiff’s vehicle was not capable of self-propulsion as a result of the extensive damage. This evidence of the Vehicle Examiner contained in a credit-worthy document prevails over arguments of the learned Defendant’s counsel that the Plaintiff’s accident vehicle was not extensively damaged.
Indeed the law is settled that documentary evidence if found to be authentic should prevail over conflicting oral evidence. See Fosua & Adu vs. Dufie (Deceased) & Adu Poku Mensah (2009) SCGLR 310 h.1 and Dua vs. Yorkwa (1993-94) 1 GLR 217 h. 5 CA.
The Defendants’ counsel also argued that the insurance company would have been called to testify about the number of days the vehicle was with them before same was fixed and the vehicle put back onto the road. We do not think the insurers of the Plaintiff’s vehicle are material witnesses without whose evidence, the learned trial judge could not reach the conclusion she reached.
Given that there was extensive damage to the Plaintiff’s vehicle as aforementioned, we think the 90 days loss of use given by the trial Judge is reasonable. Then comes the quantum of amount that the damaged vehicle was making in a day. The Plaintiff put it at GH¢200.00 a day and this was accepted by the trial Judge which we do not want to disturb. We are aware that the Plaintiff would not be allowed to take advantage of the accident to unjustly enrich itself.
We have come to this conclusion that the 90 days loss of use at GH¢200.00 per day is comparable to what a lot of decided cases have given. Indeed the position of the law is that when a commercial vehicle which generates income to its owner is damaged through the negligent and inconsiderate driving of a Defendant, damages for the Plaintiff’s loss of use of his vehicle should be calculated from the date of the accident for six days in a week at the amount of daily sales up to the date of repairs.
As aforementioned, the trial court should ensure that the owner Plaintiff should repair the vehicle at a reasonable period depending on the extent of the damage to vehicle and the facts and circumstance of the case. The vehicle owner should however not take advantage of the situation and repair the damage at a snail space and saddle the offending car owner with outrageous claim for damages. See Ansah v. Baiden (supra); Aboagye v. Quartey & Anor. (supra) and West African Bakery v. Miezah (supra).
We have looked at the competing arguments presented in this appeal by both counsel, and it is clear that the Defendants’ counsel could not successfully demonstrate from the record of appeal why the verdict of the learned trial Judge should be overturned in favour of Defendants.
In the case of Amoah vs. Lokko & Alfred Quartey (substituted) Gloria Quartey & Others (supra) the Court per Justice Aryettey JSC, while conceding that it was the exclusive duty of the trial judge to make primary findings of fact which constituted the means by which the trial court would arrive at its conclusions, the appellate court was under obligations to consider whether or not the findings of the trial court were wholly supported by the evidence on record. The only way the appellate court can interfere with the findings of the trial court and substitute its own, was when the trial court has taken into account irrelevant maters in law; the trial court excluded critical and important mass of evidence; the court had come to a conclusion which no court properly instructing itself would reach; or the decision was perverse and finally the court’s findings were not proper inferences drawn from the facts. However where from the totality of the evidence on record, as the scenario in this instant appeal, the trial court exercised its discretion judicially, then the appellate must be far removed from disturbing it.
We have looked at this appeal in the light of the above and the numerous pronouncements of the apex court on why or in what circumstances an appellate court can interfere with the findings of a trial court as spelt out above. Unfortunately, the trial court in this instant appeal had not compromised the sanctity of the bounds of her decision. In the result this appeal is fated to be dismissed and same is hereby dismissed and the decision of the trial court hereby affirmed.