ACCRA - A.D 2018

DATE:  31 ST OCTOBER, 2018
SUIT NO:  H1/160/2018

Torkornoo, J. A:

The Plaintiff/Appellant (referred to as Appellant hereafter) is a private businessman who reported one Twum-Antwi, to the Odokor police station in Accra for defrauding him of his anticipated returns on a business deal.


The Appellant’s case is that the said Twum-Antwi was the chief executive officer of a company called Broadreach Ventures Ltd (hereinafter referred to as Broadreach). Broadreach was the original contractor of Accra Metropolitan Assembly (AMA). The Appellant and Broadreach entered into a Memorandum of Understanding which allowed the Appellant to execute a drainage contract that had been awarded to Broadreach by AMA. AMA paid for this contract to its known contractor Broadreach. Contrary to the terms of the MOU, Twum-Antwi took steps to divert the payments from the Appellant by registering new directors for Broadreach and withdrawing the cheque with them. The Appellant therefore got Twum-Antwi arrested on a complaint of fraud. Appellant claimed that Twum-Antwi was granted bail and this led to Twum-Antwi clandestinely leaving the jurisdiction.


Months later, the Appellant was able to alert the police that Twum-Antwi was in Ghana and he was arrested a second time. On this second occasion one Inspector Gyimah who was in charge of the investigation granted Twum-Antwi a second police enquiry bail and Twum-Antwi once again left Ghana and failed to return to Ghana.


Appellant claimed that he petitioned the Inspector General of Police who set up a committee to look into the case and he was informed by certain sources from police headquarters that the said Inspector Gyimah was found to have allowed himself to be corrupted by Twum-Antwi and was therefore interdicted. This was the basis of the averment that the Appellant intended to claim damages expressed in paragraph 13 of the statement of claim thus:


13. Wherefore Plaintiff claims damages from the Respondents jointly and severally for the tortious acts of commission and omission of Inspector Gyimah then servant and agent of the Respondents in (sic) the normal course of his dues as a police officer in 2004


Notwithstanding this stated intention to claim damages, there is no indorsement on the Writ of Summons for a claim of damages. It is not clear if the damages alluded to was intended to be a claim for general damages or special damages. The claims indorsed were:

i. Recovery of the sum of GH¢89,509 the capital he spent on the drainage contract awarded to Twum-Antwi Pursuant to a Memorandum of Understanding which said sum could not be recovered from the said Twum-Antwi because of the deliberate act of commission and omission committed by Inspector Gyimah then servant and agent of the Respondents in the normal course of duty by hiding docket on the case thereby allowing the said Twum-Antwi to jump bail for the2nd time and leaving the jurisdiction.


ii. Interest on the said sum mentioned in relief (i) one at the current bank rate from 2004 to the date of judgment.


iii. Exemplary costs.


 In their defence, the Respondents denied much of the pleadings and put the Plaintiff to strict proof of the averments made. They pointed out that the 2nd respondent was not a party to the drainage contract and as such cannot be held responsible for the financial loss of the Appellant under the contract. They denied that the Appellant was entitled to any of the reliefs set out in the suit.


 In his Reply, Appellant counsel stated that the Appellant would contend that the failure of the Respondent to produce the docket for Antwi to be sent to court enabled him to run away and that ‘knowing that the said Twum-Antwi had once jumped police bail, the Respondent’s servants should not have granted him a second bail and it is this grant of bail which made it very easy for him to leave the country.’


What is interesting to note is that in the applications for directions on issues for trial, the Appellant set out as issues (vi) and (v)


vi. Whether or not Plaintiff reported the matter to the IGP the 2nd Respondent who set up a departmental enquiry on the issue which said committee found Inspector Gyimah guilty of corruptly and deliberately allowing Twum-Antwi to escape prosecution.


v. whether or not the Respondents are liable for the acts of omission and commission of their agent/servant who in the normal course of his official duties as a police officer so mis-conducted himself as to allow the said Twum-Antwi to cause heavy financial loss to the Plaintiff’.


Notwithstanding these articulated issues, the Appellant called no witnesses in the trial. His counsel did not subpoena the Police authorities to bring evidence regarding the said committee and the results and or findings from the enquiry alleged. The Respondent on their part chose to call no witnesses.


In his judgment, the learned trial judge presented evaluations and reasoning for his decision to dismiss the suit that we find extremely salient, and these evaluations and reasons form the basis for the dismissal of this appeal. We will expound on the reasons after setting them out.


First he said on page 8 of the judgment which is found on page 65 of the record of appeal that

Counsel for Plaintiff failed to state what tort was committed by the agents of the Respondents for which he is claiming damages. In any case the claim of the Plaintiff is not for damages but for the recovery of Gh¢89,509 being the capital Plaintiff lost in his joint business ventures with Broadreach ventures, and interest on that sum from 2004 to date of judgment which he alleges was the amount due him.’


Second, the learned judge said on page 10 of the judgment found on page 67 of the ROP that:

Be that as it may, in every civil case it is the duty of the Plaintiff to produce credible evidence by preponderance of probabilities to prove his case in terms of Section 11, 12 and 14 of the Evidence Decree 1975 NRCD 323


Third, he evaluated the evidence before him and found as matters of fact that in the memorandum of understanding tendered by Plaintiff, the Plaintiff and Broadreach were to share profits accruing from the project equally. The Appellant’s own expenditure summary on exhibit D indicated that at the end of the project, he had expended an amount of Gh¢13,537.10. His testimony also was that he had been given Gh¢1,800 by Amonoo Neizer and Gh¢3,200 by Joseph Sosu who had been successfully apprehended by the police. From his own records therefore, the Appellant’s proper cost left outstanding was Gh¢10,337.10. Again the evidence was that the contract sum was Gh¢38,609.31 and so it was ‘difficult to imagine how Plaintiff’s investment and profits from the venture (being the Gh¢89,509.00 he was claiming in this suit) could have been almost three times the contract sum.’


Fourth flowing from the evidence, the judge held as a matter of law on page 70 of the ROP that Appellant’s claim is in the nature of a liquidated demand and this ought to be strictly proved. This Appellant had failed to do. 


Fifth, the judge found on page 71 that the claim before him is in the nature of vicarious liability of the master for the torts committed by his servants in the course of their normal course of employment. He referred to the evidence of the Appellant which was to the effect that Inspector Gyimah failed to perform his duty diligently and by his negligence or corrupt practice, allowed Twum-Antwi to escape justice. In his view, notwithstanding the claim and evidence, the complaint was effectively ‘a simple case of breach of contract for which Plaintiff could sue Broadreach ventures for his money


Sixth the court noted that it was not made clear to him what charges the police preferred against Twum-Antwi, Joseph Sosu and Amonoo Neizer but the Appellant told the court that he reported to the police that they had stolen money by fraudulently withdrawing the money from the bank when in fact he and Twum-Antwi were supposed to be the only signatories to the account.


He said that assuming that this act amounted to defrauding by false pretences under section 131 of the Criminal Offences Act, 1969 Act 29 and they were convicted, the punishment for the act found in Section 296 of the Criminal Procedure and Other Offences Act 30 would be a term of imprisonment not exceeding twenty five years each with no option of a fine. This would elide any opportunity for Plaintiff’s money to be refunded unless he took a civil action to recover the money. Thus even without the alleged negligence or corruption of Inspector Gyimah, the Appellant would not have gotten his money by means of a criminal action. The basis for the suit is therefore flawed.


Notwithstanding all the above erudite and cogent reasons for dismissing the suit, Appellant specifically lighted on the last reason for dismissing the suit based on a consideration of public policy that the learned judge stated in these terms

Besides for public policy reasons, this claim is not maintainable against the Respondents otherwise anytime a person is aggrieved by the way the police handles his case, he would sue for negligence. The police and for that matter, the attorney general would have to spend all their time defending civil suits to the detriment of their core functions of protecting life and property


 These are the grounds of appeal:

That the judgment of the Accra High Court 11 cannot be justified both in law and in fact having regard to the weight of the evidence led by Appellant in support of the case.


That the learned trial judge erred in law by holding that even though the Respondent/respondent filed as (sic) Statement of Defence but did not give any evidence at the trial in support of his case claim of Plaintiff/Appellant cannot be granted because of public policy ie: that if the Plaintiff/Appellant were to be given his judgment it would open the flood gates for the general (sic) to sue the police in the event of a tortious act.


Before addressing the submissions and decisions discussed above, we have to note that the craft of the second ground of appeal is extremely inappropriate and breaches the directions of Rule 8(5) of the Court of Appeal Rules 1997 C. I. 19. The rule provides as follows:


8(5) The grounds of appeal shall set out concisely and under distinct heads the grounds on which the Appellant intends to rely at the hearing of the appeal without an argument or a narrative and shall be numbered consecutively (emphasis mine)


By explaining what public policy the learned judge allegedly sought to uphold, the Appellant counsel introduced a narrative into the grounds of appeal. We hope counsel for Appellant will note this necessity of craft directed by the rules of the court of appeal and ensure that he directs his practice accordingly.


We agree with the learned trial judge and find the evaluation and reasoning of the learned judge extremely cogent. We will address the grounds of appeal together, since the second ground of appeal will be answered within the reasons for dismissing the first ground of appeal. The first ground of appeal is an omnibus ground of appeal contesting the conclusions based on evidence available.


It is a firmly established principle of adjudication in the appellate courts and articulated succinctly by the Supreme Court in Djin v Musah Baako 2007-2008 SCGLR, that if a party urges that a judgment is against the weight of evidence, he is contending that there are pieces of evidence that should have been construed in his favor or that evidence that should have been construed in his favor has been applied against him and such wrong application of those pieces of evidence have changed the decision of the court.


In such cases, the onus is on such an Appellant to properly demonstrate to the appellate court the lapses in the judgment appealed against.


In his submissions on the trial court’s evaluation of the improbable disconnect between evidence that showed the contract sum forming the basis of the action to be Gh¢38,093 and the alleged claimed loss to be Gh¢89,509 counsel stated that ‘the error in the figures was a genuine error because at the time the writ was filed, Ghana had just changed her currency and we were all struggling’ with writing the new cedi sign. He therefore said that ‘notwithstanding the endorsement on the writ of summons which was not on oath, the correct figure was the figure given by the Plaintiff’s exhibits and this by implication amended the figure of the endorsement.’


With all respect to learned senior counsel, to say that this submission is outrageous is an understatement. And it is outrageous because if a party before a court endorses his writ with a claim for Gh¢89,509 and supports his case with evidence of a contract for Gh¢38,093, and entitlement to half of that sum, including payment of part of it, then a judgment that dismisses the claim based on a failure to prove the sum claimed on a preponderance of probability is only amply justified by the weight of evidence. Indeed, we also note that from Exhibit H series, the complaint the appellant presented to the police was that Twum-Antwi had withdrawn Gh¢10,000 from the contract sum in issue, and not more than that. As to submitting that the court should have presumed an intention to amend the claim through the contradictory evidence, we can only point to the directions of the rules of the court of appeal and supporting dicta.


Rule 8 (1) of the C. I. 19 begins its directions with the words


8(1) An appeal to the Court shall be by way of rehearing and shall be brought by a notice of appeal’.


In Tuakwa v. Bosom 2001-2002 SCGLR 61 at page 65, the Supreme Court expanded on this direction in these words


 ‘Furthermore, an appeal is by way of re-hearing particularly where the Appellant,…alleges in his notice of appeal that the decision of the trial court is against the weight of the evidence. 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 the appellate court, in a civil case to analyse the entire record of appeal, take into account the testimonies and all documentary evidence adduced at the trial before it arrives 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’.


See also the dicta of the Supreme Court in cases such as Sarkodie v. FKA Co 2009 SCGLR 65, and Fosua & Adu-Poku v. Dufie (Decd) & Adu-Poku Mensah 2009 SCGLR 310.


We have complied with this direction and find that at no time did the Appellant make the effort to present an intention to claim less than the Gh¢89,509 indorsed on the Writ, including his submissions in addresses after the trial. Indeed, even in this appeal, when the judgment had brought starkly home to him the improbability of the claim he indorsed before the court, even if the legal basis for the case was correct, and the court dismissed that basis as flawed, Appellant counsel simply is asking for judgment to be entered for Appellant (without stating what sum he wants judgment for) and is also asking for interest to be awarded on this unknown sum to ‘the date of the honorable court of appeal’, an expression that does not communicate any known relief. We think that the less said about the submissions on the first ground of appeal, the better, because they only reflect a lack of appreciation of the burden of proof carried by any party who submits a claim before a court.


We must also say that we find that all the submissions on appeal carry the same mark of extreme incoherence in several material particulars as well as a seeming lack of appreciation of the architecture of the areas of law involved in this matter.


Our first observation is made regarding an important pillar of any litigation which is the cause of action that a party must establish before a court. Although the action purportedly arose from what the Appellant alleged to be a tort, the Appellant did not state what tort he was grounding his complaint against. The learned trial judge pointed this out and we agree with him that this failure to identify the relevant tort ought to be construed against the Appellant who was Plaintiff in the case. This point is very important because torts are not like the law of contract which presents the same foundation for the formation of all contracts.


Different torts exist within the law of torts – including disparate torts such as nuisance, negligence, defamation and trespass, and each tort carries its own creative factors. Thus to allege a tort ‘of omission and commission’ as the Appellant counsel did in the statement of claim, without identifying what tort he was describing, leaves the court and Respondent clueless as to the nature of the case being fought.


Following the judgment pointing out the failure to identify the tort alleged to be in issue, we now have counsel in his submissions before us pointing to Article 23 of the 1992 Constitution on the duty of administrative bodies to act fairly and reasonably and hinting that that duty underscores the allegation that the matters the Appellant complained about fit into the law of torts. We cannot agree with him, and indeed, we do not understand him.


 Like the trial judge, we see that the disconnect between the averments on tort without specifying the tort in issue, and damages without specifying the nature of damages, as well as the inability to prove how the acts complained of led to the loss complained of, affected the ability to distill a clear cause of action between the Plaintiff /Appellant and Respondent in this appeal, and a sustainable relief arising from the cause of action. Again, this is especially so when the final reliefs indorsed on the writ are not in any identifiable form of damages, as hinted in paragraph 13 the statement of claim, but a direct claim for reimbursement of an alleged contract sum that was allegedly stolen from the Appellant by an accused person who had jumped bail.


In both the law of torts and contract, the purpose of financial relief given in the event of financial loss flowing from an injuring act is to always put the Plaintiff in the position he would have been in if the harm had not been committed. Compensation is not awarded to enrich a Plaintiff and neither should a Plaintiff get far less than his actual loss. Thus where a party claims compensation for suffering a tort or breach of contract, there is a strict demand to prove the loss and the relationship between the loss and the tort or breach of contract.


In Borketey v Achinivu & Others (1966) GLR 92, the Supreme Court had this to say on page 95 in articulating the requisite relief a person damaged ought to be given ‘Whether the damage giving rise to a claim for compensation be done on land or at sea, the principle is the same, namely, that the wrong-doer must make reparation for his wrongful act and the owner of a damaged article is entitled to restitution in integrum


This same principle of restitution underlies the relief of damages when there is breach of contract. In Delmas Agency Ghana Ltd. V Food Distributors International [2007-2008] SCGLR 748, the Supreme court had this to say in holding 3

Special damages is distinct from general damages. General damages is such as the law will presume to be the natural or probable consequence of the Respondent’s act. The law implies general damage in every infringement of an absolute right. The catch is that only nominal damages are awarded. Where the Plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless general damages are also appropriate’.


I could go on and on and cite from cases such as A-G v. Faroe Atlantic Co Ltd 2005-2006 SCGLR 271, Bogoso Gold Ltd v Ntrakwah [2011] 1 SCGLR 415, Frabina Ltd v Shell Ghana Ltd. [2011] 1 SCGLR 429, and holding 2 of Tema Oil Refinery v African Automobile Ltd. [2011] 1 SCGLR 907 @910 where the Supreme Court consistently laid out the architecture of general and special damages and reiterated the need to prove the link between harm, loss and restitutionary reliefs.


But how can the court determine the issue of restitution to be made when the loss claimed has no relationship with the evidence presented, and when the evidence cannot establish a causal link between the act complained of, and the loss complained of? We indeed see that counsel for Appellant seemed oblivious of the different arena of law he was crisscrossing in the suit, and the demands of proof of these areas of law.


While he was alleging loss of his investment and expected income from a contract between the Appellant and a company called Broadreach through the acts of the chief executive of Broadreach, he also alleged fraud and or misappropriation of that expected income from the actions of Twum-Antwi in his personal capacity, and in collusion with others who had become directors of Broadreach.


However, his suit was not against the company or the persons who were supposed to have harmed him in contract and fraud respectively, but against the IGP and Attorney General because of an alleged tort by the IGP’s servant or agent leading to the loss earlier sustained by breach of contract and fraud by others. He seemed to forget that all these different arenas of law carried their own peculiar rules on proving that they had occurred, and proving compensation for that occurrence. He seemed to also forget that proving the law of tort and a claim for damages on the basis of a tort invited stringent demands of proof of a duty of care, causation, foreseeability and proof of loss.


In order to prove any tort, there must be a duty of care owed by the Respondent to the Plaintiff in court, to prevent the harm described. A Plaintiff must also prove the foreseeability of the harm complained of by the Respondent to the Plaintiff as a direct result of the acts of the Respondent. He must also prove that the causal link of the harm to the Plaintiff is directly traceable to the acts of the Respondent. Where liquidated damages are sought, the Plaintiff carries the burden to provide clear evidence of the financial loss as well as proof that the Respondent owed a duty not to cause that financial loss to the Plaintiff.


The recovery of damages – whether in the law of contracts or torts, is limited by the rules of ‘remoteness of damages’ i.e. that the damages to be awarded must not be too remote from, but must be proximate to the tortuous act or the breach. These are trite principles established in the last century from seminal cases such as Victoria Laundry (Windsor) Limited v Newman Industries Limited 1949 2KB 528.


So in this case, did the police service owe the Appellant a duty to protect Appellant from the loss of his contract sum through alleged fraud? Of course not. The alleged loss occurred before the matter came to the police and they could therefore not have owed a duty to prevent it or to ensure compensation for it. This is the un-bridgeable gap between the parties before the court and the duty of care requirement in the law of torts concerning the specific harm complained about.


What we note is that the police had a duty to receive the complaint of citizens, and they discharged this duty to the Appellant. They also had a duty to investigate his complaint, and this was started, though Appellant claims the investigation was stultified by Inspector Gyimah’s corrupt conduct including losing his docket. But quite apart from failing to prove Gyimah’s corruption by subpoenaing the police to bring evidence of the committee of enquiry and its findings, the Appellant also failed to prove to the court that the entire police force had deliberately refused to complete the investigation just because Twum-Antwi had been given bail and jumped bail. He could easily have subpoenaed the police authorities to explain to the court why Twum-Antwi’s case had not been prosecuted, but he chose to present only his own testimony on what information he had picked up, without seeming to appreciate the duty to discharge a burden of proof imposed by the law of evidence.


There is the third fundamental legal question that the Appellant and his counsel also failed to address, if a case for compensation in torts was to be sustained. Was it reasonably forseeable that there would have been successful prosecution of Twum-Antwi if he had not been granted bail? I would say, definitely not. Because at that point in time, it had not been proved that the man accused of the loss had actually created the loss. The only thing forseeable in the event of an accused person jumping bail is that there could be no prosecution, but nothing more. A successful or failed prosecution is not a forseeable outcome that can undergird the award of a financial loss. The link between the act of granting bail and the loss of money from a contract with a corporate body is so tenous that the hurdle of foreseeability cannot be jumped. It is a solid wall.


Again, bail is a fundamental human right supported by Article 14 of the 1992 Constitution, and so the dangers of granting bail cannot form the basis for a finding of foreseeable harm if bail is granted to an accused person. Quite clearly, it is to be appreciated that to prove a tort against the police in the grant of bail, one had a huge burden of proving that they owed a duty to disregard the constitutional duty to grant bail. We see that it is this hurdle that the learned judge rightly observed as one solidly shored up by public policy. We agree with him.


And even if the hurdles described can be cleared in a herculean attempt and yeoman’s effort, the damages for that improper grant of bail cannot be foreseeably determined as the loss of a contract sum expected from an unproved fraud complaint. The court generously pointed out this difficult landscape as the flaw in the suit and we cannot agree more.


The appeal is dismissed because the case as presented on the premise of a tort in the grant of bail by a police officer, is unsustainable in law. Again a claim for loss of a specific sum of money which loss occurred before the alleged tort is unsustainable in law. The judgment is affirmed as extremely right on all points. Before we close this judgment, we must, like the trial judge, express our dismay by the lack of professionalism displayed by all the professional actors in this case. The police are paid to protect the public. We fail to see why they have not to date completed the investigations of fraud and prosecuted this accused person who is at large, especially if copious evidence supports such a charge. There is no time limit against prosecution of criminal offences, and we believe that the Appellant is entitled to his day in court against persons who allegedly defrauded him, if there is evidence available. And this is so even if that protection cannot be given through an action in unidentified tort against the police. We also must express our extreme reservations about the quality of work by Appellant’s counsel especially in the tardy pleadings and drafting, and the seeming failure to appreciate simple issues such as cause of action in different arena of law, the right person to sue to ensure that Appellant has an enforceable judgment, the presentation of sustainable reliefs, and the weight of evidence required to win a case. The appeal is dismissed.