ELECTRICITY COMPANY OF GHANA vs. DOROTHY KINGSLEY-NYINAH (MRS.) & PATRICK KINGSLEY-NYNAH
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE COURT OF APPEAL
    ACCRA - A.D 2017
ELECTRICITY COMPANY OF GHANA - (Defendant/Appellant)
DOROTHY KINGSLEY-NYINAH (MRS.) AND PATRICK KINGSLEY-NYNAH - (Plaintiffs/Respondents)

DATE:  19TH OCTOBER, 2017
CIVIL APPEAL NO:  H1/170/2017
JUDGES:  S. MARFUL-SAU J.A. (PRESIDING), F.G. KORBIEH J.A., I.O.TANKO AMADU J.A.
LAWYERS:  KWAMENA FYNN AIKINS FOR THE DEFENDANT/APPELLANT
NAA ODOFOLEY NORTEY FOR THE PLAINTIFFS/RESPONDENTS
JUDGMENT

F.G.KORBIEH, J.A.

The brief facts of this case are that the plaintiffs/respondents (hereinafter referred to only as the respondents) are a married couple who sued the defendant/appellant (hereinafter referred to only as the appellant) in the High Court, Accra claiming the following reliefs:

(i) general damages, (ii) interests on the general damages from the 26th May 2008 to the date of payment and (iii) costs including solicitor’s fees. In their amended statement of claim they averred that the appellant had supplied electric power to them for valuable consideration at House No. 799/1, Osu RE in Accra but that on or about 26th May, 2008 there was power fluctuation and erratic power outages at the area where their premises were situated. They averred further that around 5:40pm their house-help noticed smoke coming from the premises which, upon her investigations, led to the discovery of fire in the living room of the premises. They also further that the fire and damage arising therefrom were the result of the negligence of the appellant in not ensuring a safe supply of electricity to the premises occupied by them. They again averred that the fire caused extensive damage to their property as well as household equipment and gadgets all of which cost the plaintiffs GHC57,074.50 to repair or replace. They intimated that they were going to rely on the doctrine of res ipsa loquitur at the trial. In its amended statement of defense, the appellant traversed all of the averments made by the respondents (save one or two) and went to aver (amongst others as follows: that the respondents, like all other property owners, had the duty to ensure that they wired their house to include proper earthling and maintain thereafter and that its responsibility stopped at the point of supplying the meter to a customer’s house. The appellant also averred that it was the duty of the customer to have a functional fuse within the premises and that on the 26th May, 2008 officials of the Ghana National Fire Service called its office to request that the house be disconnected because the house was on fire and this was done. It again averred that its investigations revealed that the fire started from the main switch of a split air-conditioner and the earthling of the premises was unsatisfactory and the main switch was without neutral-earth bonding and that other premises receiving electrical power supply from the same transformer and pole supplied by the appellant did not have any electrical problems. The appellant averred further that the respondents did not inform it of the additional electrical items or gadgets mentioned in their pleadings and that the cause of the fire outbreak was attributable to the respondents themselves. The appellant pleaded that the doctrine of res ipsa loquitur was not applicable to this case as the cause of the fire was known.

 

After due process, the case went to trial and the learned trial judge delivered his judgment in which he ordered the appellant to pay general damages of GHC70,000.00 ‘inclusive of the value placed on the items as per exhibit “B” is an ideal amount to place the plaintiffs in their former situation.’ It is this judgment that the appellant has appealed against on the following grounds:

 

The learned Judge erred when he relied heavily on the evidence of PW1.

 

The learned Judge erred when he held that PW1 was one of the defendant’s internal power installers with a certificate from the defendant to that effect.

 

The learned Judge erred when he relied on the hearsay evidence of PW1 to the effect that there was power fluctuation in the plaintiffs’ locality.

 

The learned Judge erred when he held that exhibit 1 did not deal with the actual situation of the power supply at the time of the fire.

 

The learned Judge erred when he found as a fact that it was the defendant’s inability to solve the power fluctuation problems in the area that caused the fire outbreak in the plaintiffs’ house thus leading to the damage of items.

 

The learned Judge erred when he held that power supply is supposed to be constant and not fluctuating as established by the evidence on record.

 

The learned Judge erred when he held the defendant was negligent.

 

The learned Judge erred when he held that the defendant failed to challenge the figures stated in the valuation report as the actual cost of the reinstating the plaintiffs to their former situation.

 

The learned Judge erred when he awarded as general damages sums that ought to be pleaded, particularized and proven as special damages.

 

The learned Judge erred when he awarded the sum of GHC70,000.00 as general damages without considering matters on proof and foreseeability of damages and also in excess of the sum the plaintiff claimed for.

 

The judgment is against the weight of the evidence.

 

Further grounds of appeal to be filed upon receipt of the record of appeal.

 

The relief that the appellant seeks from this Court is to set aside the judgment of the trial High Court. Let us, for the record, state straightaway that no other or further ground of appeal was filed apart from those that have been enumerated above.

 

Before we come to consider the submissions of learned counsel for both appellant and respondents, we would like to make a few preliminary remarks to set the ball rolling. It is trite learning that an appeal is by way of rehearing. This can also be found in Rule 8(1) of the Court of Appeal Rules, 1997 (C.I. 19). We note that so much ink has been spilled explaining what this rule means that it would no useful judicial purpose embark on explaining its import here. Suffice to say that the rule puts us, the appellate court, in the same position as the trial court and we can therefore review the evidence and make findings of fact different from that of the trial court if in our view the evidence so warrants it. We will however go straight to the grounds of appeal as treated by both counsel for the parties respectively to determine whether we can follow their example and treat the grounds of appeal the same way. And there we realize immediately that we cannot. Whereas counsel for the appellant takes grounds (a) and (b) together and abandons ground (c), counsel for the respondents treats grounds (a), (b) and (c) together. This is rather interesting since the law is that a ground that is abandoned need not be considered a ground of appeal at all by either the Court or counsel on the opposite side. In any case due to the fact counsel on the two sides did not adopt the same arrangement in arguing the grounds of appeal and also to save time we have decided to treat grounds (a) to (h) and (k) together under the omnibus ground of the judgment being against the weight of the evidence and the grounds (i) and (j) together under the ground dealing with the award of damages.

 

 

 

We will start by summarizing the submissions of both counsel and then make our own analyses of each of the two grounds and draw our conclusions on each of the two grounds. The submissions of counsel for the appellants were as follows. He commenced with the submission that the trial judge relied heavily on the evidence of PW1 even though this witness admitted knowing very little about air-conditioners and further that the witness produced his license which was obtained only in 2012 when the fire incident happened in 2008. He therefore argued that the trial judge erred in relying almost solely on the evidence of PW1 in arriving at his decision that the fire was caused by the negligence of the appellant. Counsel also contended that the learned trial judge erred when he held that exhibit 1 did not deal with the actual power situation of power supply at the time of the fire because in the view of the judge exhibit 1 was an internal memo and an afterthought. It was counsel’s contention that exhibit 1 was relevant because it was issued only following the receipt of exhibit C which is dated 2/6/2008 and which is a letter written by the respondent to the appellant formally complaining about the fire outbreak on their premises. Counsel further submitted that prior to exhibit C, there had been no report of the fire incident to the appellant and yet the trial judge had made an assumption that the appellant should have done a follow-up after the disconnection by ECG officials and investigated and rectified the cause of the power surges. Counsel argued that it was wrong for the trial judge to have made this assumption as there was no legal or evidenciary basis for it. Counsel again submitted that the respondents failed to tender in evidence the Ghana National Fire Service report on the cause of the fire even though they promised to do so to the court and yet the trial judge ignored this evidence and rather blamed the appellant for the cause of the fire.

 

In response to these submissions and arguments, counsel for the respondents made the following submissions and arguments. He submitted that PW1 was a knowledgeable witness and knew about the events leading up to the fire. He submitted further that the appellants did not lead any evidence to contradict PW1 or call the two workers who visited the site three months after the fact.” He also submitted that the appellant failed to call as a “witness one Kingsley Adu-Poku who wrote Exhibit 1 the internal memo.” Counsel emphasized that the evidence of PW1 was not hearsay evidence, as contended by his learned friend, as PW1 had had firsthand knowledge of the cause of the fire. He also submitted that exhibit 1 was based on assumptions as it was written five months after the fire incident. Counsel contended that PW1’s license had been issued by the appellant and was tendered in evidence without objection hence the trial judge had no choice but to accept it. Counsel argued that because exhibit 1 was written five months after the fire incident, it could only have been based on assumptions as most of the damage had been restored by the respondents. He continued that apart from exhibit 1 saying that the earthling in the respondents’ house was unsatisfactory, the appellant had not demonstrated in any other way the veracity of the statement to the court. Counsel again contended that the author of exhibit 1 was not the person who visited the premises of the respondents.

 

We will now proceed to evaluate the evidence on the record with regard to the ground that the judgment is against the weight of the evidence. The law is settled that an appellant who appeals under this omnibus ground of appeal has the duty to point out those pieces of evidence which, if considered by the trial judge, would have turned the case in his favour but which the trial judge failed to consider or that some evidence was wrongly applied against him but for which the case would have gone in his favour and that the onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against. See the cases of Djin v. Musa Baako [2007-2008] 1 SCGLR 686. See also cases such as Bonney v. Bonney [1992-93] Part 2 GBR 779, Tuakwa v. Bosom [2001-2002] SCGLR 61, Aryeh and Akapko v. Ayaa Iddrisu [2010] SCGLR 891 and Chou Sen Lin v. Tonado Enterprises Ltd. [2007-2008] SCGLR 135 or (2008) 13 MLRG 197. We will therefore proceed to go through the appellant’s case to see whether or not it has succeeded in convincing us that the learned trial judge failed to consider its case properly. The appellant’s first set of complaints are that the learned Judge erred when he relied heavily on the evidence of PW1 and that he also erred when he held that PW1 was one of the defendant’s internal power installers with a certificate from the defendant to that effect. We have already summarized the arguments of counsel for the appellant in support of these complaints or grounds of appeal as well as those of counsel for the respondents. At this juncture we have to set the record straight by pointing out that there were quite a number of factual errors in the submission of counsel for the respondents. To begin with, we really do not understand what counsel meant by referring to PW1 as “the only qualified person who witnessed the events and spoke to the issues.” The clear evidence on record is that the fire occurred in May, 2008 whilst PW1 acquired his license (exhibit A) on the 30/1/2012. This means that at the time of the fire PW1 had not yet been licensed as a technician and could therefore not be described as a “qualified witness”. It was also clear on the record (by his own confession) that PW1 was no expert on the installation of air-conditioners. The evidence of the appellant was that the fire was caused by the faulty switch of one of the air-conditioners installed by the respondents long after the appellants had installed their meter and gone. Secondly the allegation by counsel for the respondents that Kingsley Adu-Poku was not called as a witness flies in the face of the record since he was called as the appellant’s representative and indeed throughout the record always represented the appellant during the proceedings. (See especially page 84 of the ROA) It is our conviction that counsel for the respondents may not have read the judgment thoroughly otherwise he would not have made this unfortunate statement. We say this because exhibit 1, which the learned trial judge referred to a couple of times in the judgment, was tendered in evidence by the appellant’s representative who is Kingsley Adu-Poku. We are of considered opinion that if the learned trial judge had looked carefully at the date of exhibit A, he would have realized that as at the date of the fire incident PW1 was not the qualified person that he claimed to be. According to the evidence of the appellant, the fire was caused by the faulty switch of an air-conditioner. This, PW1 was not in the position to know or to challenge. The response he gave in cross-examination on this matter was only begging the question; for faulty air-conditioners do not always announce themselves before they start fires. The trial judge ought not therefore to have brushed aside the appellant’s version of the cause of the fire. Besides, the trial judge glossed over the failure of the respondents to produce the Ghana National Fire Service report which obviously was very relevant to resolve the issue of how the fire got started on the premises of the respondents. All these are serious shortcomings in the judgment. As we have pointed out above, it is the duty of an appellant to point out such deficiencies in a judgment and unless the respondent or his/her counsel can give convincing or reasonably probable explanations for the deficiencies, the appellate court has a duty to uphold the appeal on the particular ground of appeal.

 

We will next go to the appellant’s complaint that the learned Judge erred when he held that exhibit 1 did not deal with the actual situation of the power supply at the time of the fire. The trial judge’s position was that exhibit 1 was written four months after the fire incident and was therefore unfounded and an afterthought. We think this was a typical case of a trial judge wrongly applying evidence against a party or not evaluating the evidence on the record properly and therefore deciding a case wrongly against a party. As contended by counsel for the appellant, the trial judge made assumptions that he was not entitled to make. Presumptions are permitted under section 18 of the Evidence Act, 1975 (NRCD 323) but these presumptions must be drawn from facts or groups of facts found or otherwise established in the action. (See section 18 of NRCD 323) The trial judge could therefore not make assumptions unless there was evidence to support the assumptions. So when he assumed that the appellant should have followed up to investigate and rectify the power surges, the assumption should have been based on some evidence that the appellant was not only aware of the fluctuations and power surges but also that the appellant had a legal (as distinct from a moral or commercial) duty to go and do any investigations and rectifications. As contended by the appellant, the only time it received notification of its involvement in the fire outbreak was when it received exhibit C which is dated 2/6/2008. Prior to that date the appellant had no legal obligation to go and make investigations at the premises of the respondents merely because a fire had occurred there. It is a matter of course that whenever there is a fire outbreak anywhere, the appellant is called upon to cut off electricity supply to the premises or house involved. This in itself does not place a legal obligation on the ECG to make investigations into the cause of the fire. It is a notorious knowledge that that is the duty of the Ghana National Fire Service. It is only when the GNFS determines that the fire was caused by an electrical fault and ECG is informed that their duty to commence investigations kicks in. As already stated elsewhere, the respondents procured a GNFS fire report which was supposed to give the cause of the fire which they promised to tender in court but failed so to do. The question is: Why? Per exhibit 1, the appellant conducted its investigations on the premises of the respondents on the 11/6/2008 which is just one week after receiving exhibit C. It may have been four months after the fire outbreak as concluded by the trial judge but whose fault was it? The difference in time lapse makes a lot of difference in influencing one’s judgment but it is our position that if the learned trial judge had evaluated this piece of evidence more carefully, he would have come to a different conclusion. PW1 talked a lot about telling the respondents to report the power fluctuations to the appellants but where is the evidence that they actually did? The respondents had the burden of proof to persuade the court that they actually reported the power fluctuations to the appellant. See the case of Zabrama v. Segbedzi [1991] GLR 221 where the Court of Appeal held that “a person who makes an averment or assertion, which is denied by his opponent, has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred”. But even if the respondents had been able to make the report (which they did not do) where is the proof that these fluctuations exceeded the limits permitted by the law under L.I. 1816 (Electricity Supply and Distribution (Technical and Operational) Rules, 2005). We will revert to L.I. 1816 in greater detail in due course.

 

Throughout their case the respondents and their witnesses never made mention of the power fluctuations exceeding the limits set by the law.

 

We will next go to the appellant’s set of complaints which are as follows: the learned Judge erred when he found as a fact that it was the defendant’s inability to solve the power fluctuation problems in the area that caused the fire outbreak in the plaintiffs’ house thus leading to the damage of items, the learned judge erred when he held that power supply is supposed to be constant and not fluctuating as established by the evidence on record and the learned judge erred when he held the defendant was negligent. We have already touched on part of this set of complaints when we held that it was wrong for the trial judge to have relied solely on the evidence of PW1 to arrive at the conclusion that it was the power fluctuations that caused the fire, especially in view of exhibit 1 which states the cause of the fire to be the faulty switch of an conditioner installed by the respondents. We have also made the point that the failure of the respondents to tender the fire service report was a grievous omission on their part and the trial judge should not have glossed over it. There were a number of reports that the respondents ought to have tendered in evidence which they failed to do. We have already mentioned the fire report from the GNFS. There was one mentioned in exhibit C that the respondents said they had commissioned to be undertaken by professional engineers that they failed to tender in evidence. These are all pieces of evidence that the trial judge glossed over that the appellant is complaining about. The appellant’s representative (Kingsley Adu-Poku) testified and said in cross-examination as follows:

“Q. You have concluded that it can be established with certainty the absolute certainty that the main air-conditioner switch was faulty, hence the fire outbreak, beyond the internal memo.

A.  Yes my lord.”

 

(See pages 92-93 of the ROA). Counsel for the respondents did not go further to challenge this assertion made by the witness. The law, as enunciated in many decided cases including one by the Court of Appeal in the case of Aryeetey v. Brown [2006] MLRG 164 is that:

 

“Where an opponent in an action failed to challenge the other party on an issue of fact alleged, then the Court would take the failure tochallenge as an admission of the truth of the fact as presented.”

 

There was therefore other evidence, apart from exhibit 1, that the appellant presented as the cause of the fire which was that it was caused by the faulty switch of an air-conditioner installed by the respondents. We find this as a fact. But beyond the evidence, there was also the applicable law that was binding on the trial judge which he failed to apply. Part of the judgment reads as follows:

 

“I find as a fact that it was the defendant’s inability to solve the power fluctuation problems in the area that caused the fire outbreak in the plaintiff’s (sic) house thus leading to the damage of the items listed by the plaintiff. This failure of the defendant company in my view, amounted to negligence on its part to supply power to its customers as required by the terms of the contract between them.”

 

Negligence is a species of the law of tort and the respondents made their claim for damages in negligence. (See paragraph 7 of the amended statement of claim on page 49 of the ROA) But the judgment condemned the appellant for breach of contract as shown above. In any case, the respondents failed to plead the particulars of the negligence of the appellant save to say that the appellant did not control the level of power fluctuations in their area. As will be demonstrated shortly the law allowed the appellant some leeway in the matter of power fluctuations and it was not just any degree of power fluctuation that made the appellant liable. In the written address of counsel for the then defendant filed before the judgment was delivered, counsel drew the court’s attention to the provisions in rules 8, 9 and 14 of L.I. 1816 which provide as follows respectively:

 

“8. (1) Subject to rule 43, the supplier shall ensure that the voltage at the point of supply to the customer’s premises or electrical installation is within the following levels:

(a) 230 Y;

(b) 400Y;

(c) 11kV; (d) 33kV; or

(e) 34.5kV.

(2) Any variations from the relevant standard voltage levels under the sub-rule (1) shall be as provided in Schedule 1 to these Rules.

(3) The supplier shall minimize the frequent occurrence of voltage fluctuations which shall not exceed the limits in the steady state in Schedule 1.

9.(1) The nominal frequency of supply shall be 50 Hz and shall not go

(a) beyond the upper limit of 50+5%Hz; or

(b) below the lower limit of 50-5%Hz.

(2) The supplier is not liable for any frequency variations outside of the frequency specified in sub-rule (1).”

“14.(1) A supplier shall

(a) minimize voltage fluctuations on its distribution system, and

(b) not connect customers whose loads are likely cause voltage fluctuations at the point of the common coupling.

(2) A customer shall ensure that use of electricity by the customer does not adversely affect or interfere with

(a) The supplier distribution system; and

(b) the quality of supply to other customers.”

 

(“Hz” is the abbreviation for “Hertz”; according to the Concise Oxford English Dictionary.)

 

The appellant’s counsel indeed need necessarily not have drawn the attention of the learned trial judge to this piece of legislation for it is said that the law is in the bosom of the judge but once he did the judge was in duty bound to apply it. Without any iota of evidence or reference to this law, the trial judge made a finding of fact against the appellant. Indeed the evidence showed clearly that it was the respondents who were in breach of the law. They had installed five air-conditioners without reference to the appellant when the contract between the parties as well as the law required that the respondents obtained the consent of the appellant before installing the air-conditioners. These were matters that the learned trial judge ignored completely hence his decision that it was the inability of the appellant to solve the power fluctuation problems in the area that led to the fire outbreak and the damage of the items listed by the plaintiff and further that this failure amounted to negligence. Under rule 14(1)(a) the appellant had a duty to minimize power fluctuations and not to eliminate them yet this what the learned trial judge said:

 

Power supply is supposed to be constant and not fluctuating as established by the evidence on record. If the defendant failed to control its supply of power to the plaintiff’ house and it has resulted in the destruction of their property by fire, the defendant cannot be heard to use technicalities to evade responsibility.” (Emphasis supplied)

 

But there was another legal matter that both the respondents and the learned trial judge ignored that made the judgment incompetent. It is provided in rule 19 of L.I. 1816 as follows:

 

“The occupier of any premises shall, in the event of an outbreak of fire on the premises, immediately notify the fire station and the supplier.”

 

The evidence on record is that the respondents reported the fire outbreak to the appellant per exhibit C which is dated several months after the fire incident. They thus again breached the provision of L.I. 1816. These all matters that the learned trial failed to consider in his judgment was therefore given per incuriam since it went against the provisions of an existing law.

 

Following from all of the above, we hold that the appellant has been able to point out pieces of evidence which, if properly considered by the trial judge, would have turned the case in its favour but which the trial judge failed to consider as well as evidence that was wrongly applied against it. Accordingly we uphold the first ground of appeal as modified by us which is that the judgment is against the weight of the evidence.

 

We now come to the two remaining grounds of appeal which we shall treat together. They are couched as follows: (i) the learned Judge erred when he awarded as general damages sums that ought to be pleaded, particularized and proven as special damages and (j) the learned Judge erred when he awarded the sum of GHC70,000.00 as general damages without considering matters on proof and foreseeability of damages and also in excess of the sum the plaintiff claimed for. We will start our treatment of these grounds by going back to look at the respondents’ pleadings, particularly the statement of claim. In paragraph 9a of the amended statement of claim the respondents claimed items that were quite capable of being proved as special damages. It simply beats ones imagination why the respondents decided to claim general damages after they had set out such pleadings. In the case of Hammond v. Odoi [1982-83] GLR 1215 Charles Crabbe, JSC said at page 1235 that:

 

“Pleadings do not only define the issues between the parties for the final decision of the court at the trial; they manifest and exert their importance throughout the whole process of the litigation. They contain the particulars of the allegations of which further and better particulars may be requested or ordered, which help still further to narrow the issues or reveal more clearly what case each party is making. They limit the ambit and range of the discovery of documents and the interrogatories that may be ordered…………...

Pleadings are the nucleus around which the case - the whole case - revolves. Their very nature and character thus demonstrate their importance in actions, as for the benefit of the court as well as for the parties. A trial judge can only consider the evidence of the parties in the light of their pleadings. The pleadings form the basis of the respective case of each of the contestants. The pleadings bind and circumscribe the parties and place fetters on the evidence that they would lead. Amendment is the course to free them from such fetters. The pleadings thus manifest the true and substantive merits of the case. And the reply is very much a part of the pleadings. And in this case the party most affected did not complain.”

 

By the nature of their pleadings, we had expected that the respondents would have asked for and proceeded to lead evidence to prove special damages. It was quite an aberration of practice that, in the light of their pleadings, they asked for general damages. In the case of Delmas Agency v. Food Distributors [2007-2008] SCGLR 748 the Supreme Court held that:

 

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 defendant’s act. It arises by inference of the law and therefore need not to be proved by evidence. The law implies general damages in the 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 or prove it strictly. If he does not, he is not entitled to anything else unless general damages are appropriate.”

 

Having regard to the law as so succinctly put in the case above, it was a wonder to us why the respondents would enumerate the items they allegedly lost to the fire of the 26th May, 2008 and instead of putting in a claim for special damages, opted for general damages. Pleadings play a very important role in a party’s case and the failure of a party to plead his/her case properly may be the beginning of difficulties that the party would face in the course of prosecuting the case. In the case of

 

Ankomah v. City Investment Company Ltd. [2012] SCGLR 1123 the Supreme Court decided as follows:

 

From the nature of the pleadings in the statement of claim, the particulars of damages given, indicate a clear intention that damages being claimed are special in nature. This is so because the plaintiff specifically mentioned the amounts of loss per day. One would therefore expect that, those claims would be strictly proved by not only mounting the witness box to repeat the figures but by the production of documentary evidence as proof of payment of those amounts. Alternatively, evidence could have been led to establish that the vehicle hired in the absence of the plaintiff’s vehicle which had been unlawfully detained cost so much and that the period of hire was for this or that period…”

 

It is therefore our considered view that the learned trial judge erred in law by not taking into account the fact that the respondents’ pleadings was defective in law and proceeding to grant them the quantum of damages they asked for even though they had not proved those damages in terms of the requirements of the law. For one to succeed in proving special damages under the law, one has to prove the actual expenses incurred and nothing in futuro or speculative. In the case of Boham v. Evonna [1992] 1 GLR 287 Kpegah, J (as he then was) held as follows:

 

where a person claimed from another special damages based on damage caused to his vehicle as a result of the negligence of that other, he could only prove his claim by proving the money he had actually spent to effect the repairs of the damage which resulted directly from the accident. Accordingly, since in the instant case the plaintiff’s claim was only based on the estimated cost of repairs it was premature and could not succeed as a claim for special damages. To grant the relief would be a speculative venture.

 

It was probably because the respondents knew they were going to have a problem proving any claim for special damages that they opted for general damages. But if that was the case, then they should have been candid with the court and not put values or prices on the items in exhibit B. We think that the learned trial judge got it all wrong when he confused general damages with special damages and proceeded to award the respondents damages in the nature of special damages when actually they had asked for general damages. As stated above, the two are very different and ought to be treated very differently. Having found that the appellant was not negligent and not to blame for the fire outbreak on the premises of the respondents on the day in question, we hold that they have to bear their loss by themselves. Accordingly we reverse the award of damages made by the trial court. We also reverse the costs that were awarded against the appellant in the court below. We therefore uphold the appellant’s appeal on these two grounds of appeal as well.

 

The appeal is accordingly allowed in its entirety. The judgment of the trial High Court is hereby reversed and all consequential orders made thereunder set aside.

 

 

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