IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT (GENERAL JURISDICTION DIVISION),
ACCRA- A.D 2019
JANET OWUSU - (Plaintiff)
TODAY’S LOGISTICS CO. LTD. AND TAWIAH SOWAH - (Defendant)
DATE: 30 TH JANUARY, 2019
SUIT NO: BMISC/1106/2012
JUDGES: HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
ASAMOAH AMOAKO FOR THE PLAINTIFF
GOLDA DENYO THE DEFENDANT
 This action arises following a motor vehicle collision which took place on July 3, 2012 in and around Kwabenya White House at Kwabenya in Accra. The collision involved a Nissan Almera Cab with Registration Number GR 4464-12 and owned by the Plaintiff herein, Janet Owusu and a Man Diesel Tipper Truck with registration number GT 9387-12. The 1st Defendant Today’s Logistics Company Limited is the owner of the Man Diesel Tipper Truck vehicle which was involved in the accident. The 2nd Defendant Tawiah Sowah was operating the Man Diesel Truck at the time of the collision which resulted in the injury to about seven passengers who were on board the Nissan Almera Cab and six other vehicles which were also involved in the collision.
 On July 20, 2012 the 2nd Defendant was charged by the Police and arraigned before the Madina District Court on charges of careless and inconsiderate driving and negligently causing Harm. He pleaded guilty to the charges and “was convicted on his own plea and fined GH¢1,800.00 in default 24 months IHL”.
 Consequently, the Plaintiff commenced this action against the Today’s Logistics and Tawiah Sowah on September 25, 2012 as the Defendants and claimed against them jointly and severally for the following reliefs:
i) An order to compel the Defendants to pay for the current replacement cost of Plaintiff’s vehicle or in the alternative purchase the same vehicle for the Plaintiff.
ii) An order to compel the Defendants to pay for the daily income for the commercial use of the vehicle from 3rd July, 2012 until final date of payment.
iv) Any further reliefs or orders as the Court may deem meet.
ii. The Pleadings:
 The Plaintiff’s case is that she acquired the Nissan Almera vehicle for the purpose of commercial services as a taxi cab. The Plaintiff pleaded that “the cummulative cost of purchase, licensing and registration of the vehicle amounted to GH¢15,000.00”. The Plaintiff further pleaded that the daily income of GH¢30.00 was made from the commercial running of the vehicle except on Saturdays when the vehicle was parked for washing and other related maintenance.
 The Plaintiff further averred that her vehicle was smashed and crushed on July 3, 2012 whilst plying on the Dome-Kwabenya road with passengers on board by the 1st Defendant’s vehicle. According to the Plaintiff there were four passengers who were on board her vehicle including her driver at the time of the accident and they sustained various degrees of injuries and were treated at the hospital. The Plaintiff pleaded that “the Defendants have resisted all her requests to replace her vehicle for her and also pay her daily income from the commercial use of the vehicle from 3rd July, 2012”, hence the claim.
 The 1st Defendant has denied Plaintiff’s Claim. By an amended Statement of Defence filed pursuant to leave granted by this court, the 1st Defendant denies paragraph 1 to 6 of the Plaintiff’s Statement of Claim. The 1st Defendant however admits that “on 3rd July 2012 its diesel tipper truck with registration number GT 9387-12 was involved in an accident on the Dome-Kwabenya Road in the Greater Accra Region”. It also admits that “the 2nd Defendant was up until 20th July 2012 employed by the 1st Defendant as a driver for its diesel tipper truck with registration number GT 9387-12”.
 The 1st Defendant also pleaded that its diesel tipper truck with registration number GT 9387-12 was in good condition and that the accident was as a result of a sudden mechanical failure. According to the1st Defendant “a pipe burst in the highly compressed air braking system while the vehicle was in motion resulting in air pressure drop and the inability to activate the brakes to operate when the pedal was depressed causing the brakes to fail to cause the accident”. To the 1st Defendant therefore the accident was not its fault.
 The 1st Defendant pleaded that “any admissions made by the 2nd Defendant in any proceedings relating to the accident was made without authority of the 1st Defendant and therefore the 1st Defendant cannot be held liable”.
 The 1st Defendant further averred that though the Plaintiff approached it once to request that it pays for the replacement of the Nissan Almera vehicle, it says it informed the Plaintiff that it would be prepared to make an ex gratia payment if the Plaintiff provided a report from the State Transport Corporation on the value of the taxi at the time of the accident. The Defendant admitted that some passengers on the taxi were injured in the accident but pleaded that it would put the Plaintiff to strict proof. Based on all of the above the 1st Defendant pleaded that Plaintiff is not entitled to her claim.
 The Plaintiff filed a reply on February 12, 2013 to respond to the Statement of Defence filed. The Plaintiff pleaded by way of the reply that the 1st Defendant is vicariously liable for the torts of the 2nd Defendant who at the time of the accident was an employee of the 1st Defendant, The Plaintiff further replied that the 1st Defendant’s Solicitor only wrote to make an offer of GH¢6,000 to the Plaintiff but she found same to be woefully inadequate, The Court also notes that pursuant to an earlier misjoinder order granted by this Court differently constituted, the Plaintiff filed an Amended Writ of Summons on January 19, 2016
iii. Issues for Trial
 At the close of the pleadings the issues contained in the Application for Directions filed by the Plaintiff on February 12, 2013 and the Additional Issues filed by the Defendant on May 19, 2016 and adopted by the court for trial were:-
a) Whether or not Defendants’ Man Diesel Truck was involved in an accident on July 3, 2012?
b) Whether or not in the accident the Defendants’ Man Diesel Truck smashed and crushed Plaintiff’s Taxi Cab, with registration number GR 4464-12.
c) Whether or not the Plaintiff taxi cab with registration number GR 4464-12 got damaged or destroyed beyond repairs as a result of Defendants’ Man Diesel Truck smashing and crushing it.
d) Whether or not the Plaintiff’s taxi cab made daily sales of Thirty Ghana Cedis (GH¢30.00).
e) Whether or not the 1st Defendant is absolved from liability by reason that 2nd Defendant is no longer in its employment.
f) Whether or not Plaintiff is entitled to her claim?
The Additional Issues filed were as follows:
1. Whether the Nissan Almera vehicle with registration number GR 4464-12 is insured for use as commercial vehicle”
2. Whether the accident was caused by a sudden mechanical defect over which the 1 Defendant had no control?
iv. Determination of the Issues by the Court
 The issues set down for determination in this suit will no doubt effectively determine the dispute between the parties. The law is trite that a party who asserts a fact assumes the responsibility of proving same. The burden of producing evidence as well as the burden of persuasion is therefore cast on that party and the standard required is provided for by virtue of sections 10,11 and 12 of the Evidence Act 1975 [NRCD 323). The Court notes that the stated provisions have received judicial blessing as the Supreme Court has pronounced on them in the past to be the nature and standard of proof in civil cases.
 One of such decision is the case of ABABIO VRS. AKWASI IV [1994 – 1995] GBR 774 where Aikins JSC expounded the position as follows:
“The general principle of law is that it is the duty of a Plaintiff to prove what he alleges. In other words, it is the party who raises in his pleadings an issue essential to the success of his case who assumes the burden of proving it. The burden only shifts to the defence to lead sufficient evidence to tip the scales in his favour when on a particular issue, the Plaintiff leads some evidence to prove his claim. If the Defendant succeeds in doing this he wins, if not, he loses on that particular issue”.
 By the above statement of the law Aikins JSC reiterated the position of Kpegah JA. (as he then was) in ZABRAMA V. SEGBEDZI.  2GLR 221. Further, the Supreme Court reiterated the principle that the party who asserts has the burden of proof in the case of ACKAH V. PERGAH TRANSPORT LTD & ORS  SCGLR 728 where in unanimously dismissing an appeal, the Supreme Court held inter alia as follows:
“It is a basic principle of the law on evidence that a party who bears the burden of proof is to produce the required evidence of the facts in issue that has the quality of credibility short of which his claim may fail. The method of producing evidence is varied and it includes the testimonies of the party and material witnesses, admissible hearsay, documentary and things (often described as real evidence), without which the party might not succeed to establish the requisite degree of credibility concerning a fact in the mind of the court or tribunal of fact such as a jury. It is trite law that matters that are capable of proof must be proved by producing evidence so that on all the evidence a reasonable mind could conclude that the existence of the fact is more reasonable than its non-existence. This is a requirement of the law on evidence under sections 10(1) and (2) and 11(1) and (4) of the Evidence Act, 1975 (NRCD 323).”
v. The Plaintiff’s Evidence:
 The Plaintiff’s case consisted of her testimony in court and the documentary evidence she submitted in support of her claim, marked in the record as Exhibits “A” to “C”. The Plaintiff’s Exhibit “D” attached to the witness statement was rejected and marked as “R” at trial. Madam Owusu testified based on the witness statement filed on 13-10-2016 and adopted at trial that she is the owner of the Nissan Almera Taxi Cab with registration number GR 4464-12. She testified that her vehicle was destroyed by the Defendants’ Man Diesel Tipper Truck with registration number GT 9387-12 on July 3, 2012. According to her she bought the vehicle for GH¢15,000 and was making daily sales of GH¢30.00. Her evidence which was in pith and substance a rehash of her pleadings was that the Defendants’ Man Diesel Tipper Truck “smashed and crushed” her vehicle and totally destroyed it such that “it can never be repaired”. She tendered as Exhibit “A” photographs of the damaged vehicle.
 Madam Owusu further testified that the passengers who were on board her vehicle sustained various degrees of injury and were rushed to the hospital for treatment. The further case of the Plaintiff is that the police investigated the incident and based on it “the 2nd Defendant was subsequently prosecuted and convicted for careless and inconsiderate driving and negligently causing harm”. Madam Owusu further testified that as part of the police investigation a report was written. A copy of the police accident report was tendered at trial as Exhibit “B”.
 According to the Plaintiff the Defendant have resisted all her requests to have them buy her a replacement vehicle “as well as pay my daily sales at GH¢30.00 per day till final date of payment and insurance even a letter to 1st Defendant’s insurance insurer could not yield any result”. A copy of a letter from Phoenix Insurance dated 26th January 2015 was tendered as Exhibit “C” at trial.
 Madam Owusu further testified that even though the 1st Defendant’s General Manager visited the scene of the accident and saw the damage to her vehicle and the other vehicles involved in the collision caused by its Man Diesel Tipper Truck “he neither sympathized with the accident victims and the Plaintiff and he was not ready to speak to the Plaintiff but just arrogantly brushed all suggestions from the police investigator aside”.
 Under cross examination by the Defendant’s counsel, the Plaintiff stood by her testimony and again reiterated that the Defendants’ Tipper Truck destroyed her vehicle and same is beyond repairs because the vehicle could not be driven to the police station.
 In further cross examination, the following evidence was elicited between Defendant’s counsel and Plaintiff’s Managing Director.
“Q: After the accident you never made any effort to repair your vehicle, I am suggesting to that to you.
A: I took steps to have the car repaired because the police conducted its investigations and the testing officer also conducted a test. So there was nothing I can do because a government official conducted the test.
Q: I am putting it to you that the accident report does not state that the car was damaged beyond repairs.
A: That is not correct. The car that the police had investigated and a testing officer having tested the car. An accident car that could not be driven but towed to the police station that made the suggestion incorrect.
Q: What did you do to the car following your position that the car cannot be repaired?
A: The car is still at the police station because the car cannot be used for anything.
Q: I am suggesting to you that the car could have been salvaged, so you should have salvaged the car following your position that it could not be repaired.
A: I cannot do anything to the car because their car destroyed my car and they admitted having damaged my car.
Q: Your assertion that the 1st Defendant admitted damaging your car is not true.
A: That is incorrect, 1st Defendant admitted damaging my car. Because when the accident occurred we all went to the police station. At the police station he was asked whether he was guilty or not and he said he was guilty. That is why he said their car is insured…
Q: The 1st Defendant never pleaded guilty to the police. I am putting that to you. Your statement is not true
A: That is incorrect. 1st Defendant pleaded guilty at the police station….
 It should be noted that the Plaintiff denied in totality the 1st Defendant’s contention that it is not liable for the acts of the 2nd Defendant. In yet another snippet of Cross Examination this is what happened:
Q: I am suggesting to you that any plea that the 2nd Defendant made in the criminal proceedings does not affect the 1st Defendant
A: It affects the 1st Defendant.
Q: And I am also suggesting to you that any admissions made by the 2nd Defendant were made without the 1st Defendant’s authorization.
A: 1st Defendant authorized the 2nd Defendant to make those admissions because the car was working for the 1st Defendant.
 The Plaintiff called no other witness and closed her case after testimony. At that stage, I made the following findings. They are that:
(a) Plaintiff’s evidence adduced is consistent with the pleadings filed; and
(b) Generally her testimony was admissible, credible and relevant to the claim filed.
 How then did the 1st Defendant Company contest the Plaintiff’s claim and to what extent did it succeed in its defence set up against the Plaintiff’s claim?
 In ADJETEY AGBOSE & ORS VRS KOTEY & ORS [2003-2004] SCGLR 420 Brobbey JSC described the position of the Defendant in defence to a claim as follows:
“A litigant who is a Defendant in a civil case does not need to prove anything. The Plaintiff who took the Defendant to court has to prove what he claims he is entitled to from the Defendant. At the same time, if the Court has to make a determination of a fact or of an issue and that determination depends on evaluation of facts and evidence, the Defendant must realise that the determination cannot be made on nothing. If the Defendant desires the determination to be made in his favour then he has a duty to help his own cause or case by adducing before the court such facts or evidence that will induce the determination to be made in his favour”
vi. Defendant’s Evidence
 The evidence of the 1st Defendant was adduced through its Manager Michael Kafui Letsa. He testified per the witness statement filed and adopted at trial that “the 1st Defendant is a company which employed the 2nd Defendant as a driver of its diesel tipper truck with registration number GT 9387-12 until 20th July 2012 when the 2nd Defendant left the 1st Defendant’s employment. Mr. Kafui Letsa further told the Court that “on 3 July the Truck was involved in an accident on the Dome-Kwabenya Road in the Greater Accra Region”. According to him prior to the accident the Truck was in good working condition and the accident was as a result of a sudden mechanical failure. According to him that fact is confirmed by the Police Accident Report which was tendered as Exhibit “1”.
 According to the witness based on the contents of the police accident report, the accident was not the fault of the 1st Defendant. Mr. Kafui Letsa further testified that the 1st Defendant is aware that the 2nd Defendant was prosecuted in relation to the accident and he made certain admissions. However according to the 1st Defendant’s witness those admissions were made without its authority and therefore the 1st Defendant cannot be held liable for the said admissions.
 The further evidence of the 1st Defendant’s witness was that after the accident the Plaintiff approached the 1st Defendant and requested that it pays for the replacement of the Nissan Almera Taxi cab. Mr. Kafui Letsa said “the 1st Defendant informed the Plaintiff that although the accident was not its fault, it would be prepared to make an ex gratia payment if the Plaintiff provided it with a report from the State Transport Corporation on the value of the said taxi at the time of the accident”. The witness said the Plaintiff did not provide the requested report despite several follow ups by the 1st Defendant.
 The other evidence of the Defendant’s witness are contained in the witness statement filed. In particular from paragraphs 10 to 18 the 1st Defendant denied the Plaintiff’s claims. According to the witness a letter written by which a proposal was made for settlement was written on “without prejudice” basis and therefore the Court should not rely on same. Based on all of the above testimony the 1st Defendant urged on the Court to dismiss the Plaintiff’s suit against the 1st Defendant.
 Under cross-examination by Plaintiff’s Counsel, the 1st Defendant’s witness testified that the 1st Defendant owned the Tipper Truck and also confirmed that the 2nd Defendant at the time of the accident was employed by the 1st Defendant. A crucial part of the testimony by the Mr. Kafui-Letsa during cross-examination was elicited in regards to when the 2nd Defendant ceased to be in the employment of the 1st Defendant. This is what happened:
“Q: Are you aware that your vehicle No. GT 9387-12 was involved in an accident?
A: Yes I am aware that Today’s Logistics vehicle was involved in an accident.
Q: Are you aware that the Plaintiff’s vehicle was one of the vehicles smashed by Today’s Logistics vehicle with registration No. GT 9387-12.
A: Yes I am aware of the incident….
Q: Where is the 2nd Defendant, the driver of the said vehicle?
A: I cannot answer this question.
Q: Is the 2nd Defendant still in your employment.
A: No my lord he is no longer in the employment of Today’s Logistics.
Q: When did the 2nd Defendant leave the employment of Today’s Logistics?
A: We parted ways with the said employee three months after the said incident….
Q: You have told this honourable court that the 2nd Defendant left the employment of 1st Defendant three months after the incident, are you talking about October 2012?
A: Yes my lord. The said vehicle he was using was involved in an accident in July 2012 but the next month we could not repair the vehicle for him and so subsequently the contract came to an end between us and the driver.
Q: I am suggesting to you that you did not provide accurate information to this Court when you stated in paragraph 2nd of your witness statement that the 2nd Defendant left the employment or was in the employment of the 1st Defendant until 20th July 2012.
A: My Lord I wish to refer to my witness statement. As per my witness statement it is stated here that the 2nd Defendant left the employment after 20th July 2012. As I explained earlier to the court the 2nd Defendant was employed as a driver or vehicle with registration No, GT 9387-12 hence after the accident his employment was somewhat terminated but not officially until three months after when he got employment with another company thereby terminating the contract with our company”. [Emphasis Mine].
vii. Findings of Fact & Evaluation of Evidence:
 From the pleadings filed by the parties and after having heard the testimony of the witnesses at trial and the exhibits filed, and also having read the written submissions filed by Counsel, I make the following findings of fact having subjected all the evidence on record to critical evaluation and analysis. It is my finding that:
i) The Plaintiff is the owner of Nissan Almera Taxi Cab No. GR 4464-12 whilst the 1st Defendant also owned the Man Diesel Tipper Truck GT 7387-12. I find as a fact that on July 3, 2012 the 2nd Defendant was operating the Man Diesel Tipper Truck as an employee of the 1st Defendant crushed the Nissan Almera together with other vehicles.
ii) The Police investigated the accident and wrote a report and both parties tendered same as exhibit at trial. See Exhibits “B” and “1” respectively.
iii) I also find as a fact that the 2nd Defendant was arraigned before the Madina District Court on charges of careless and inconsiderate driving and negligently causing hard. He pleaded guilty to the charges and was convicted on his own plea. The 2nd Defendant paid the fine of GH¢1, 800.00;
iv) I also find as a fact that the Plaintiff’s vehicle was wrecked and/or damaged beyond repairs.
 I now proceed to consider the central issue in this case being whether or not the Defendants are liable for the destruction of the Plaintiff’s vehicle before proceeding to address that issue it is desirable to consider the claims as endorsed on the writ and submission of learned Counsel for the Plaintiff that:
“in her witness statement, the Plaintiff stated this at paragraph 15 “the Defendants are liable to me to pay for the replacement cost of the Nissan Almera which now cost about GH¢30,000.00 and also pay for the daily sales from 3rd July, 2012 till final date of payment”
Counsel further stated at the concluding part of his written submission that:
“My Lord, it is notorious fact that taxis now make daily sales of GH¢70.00 except a day deducted as a day of rest. The replacement cost and the extent of the daily sales were foreseeable and highly consequent to the liability of the Defendants who have been sued jointly and severally”.
 It is recalled that the Plaintiff has sued and endorsed as relief (b) “an order to compel the Defendants to pay for the daily income for the commercial use of the vehicle from 3rd July, 2012 until final date of payment”. The Plaintiff in her evidence in chief as per the witness statement filed said she was making sales GH¢30.00 a day. In my opinion, the Plaintiff poorly and woefully failed to establish the claim for daily sales which clearly is a special damage(s) claim and therefore ought to be dismissed.
 To begin with, it is trite learning that special damages is distinct from general damages. It is the requirement of the law that special damages ought to be pleaded and particularized and then proved by admissible evidence otherwise it could not be recovered. See CHAHIN & SONS v. EPOPE PRINTING PRESS  1 GLR 163 SC, where the Supreme Court held that “Where special damages are claimed it is not enough for the Plaintiffs to write down the particulars, they have to prove them”. See also KUBI v DALI (1984-86) 2 GLR 501 where the Court of Appeal stated and affirmed the law that “special damages in the sense of a monetary loss which the Plaintiff had sustained up to the date of the trial must be pleaded and particularised and then proved by admissible evidence otherwise it could not be recovered”
 In the instant case the special damages is by way of the monetary loss of daily taxi sales was not particularized and no evidence was led to prove the said sales the Plaintiff says she has lost. Accordingly, I dismiss that claim. That notwithstanding once the Plaintiff also sued for the replacement of the Nissan Almera Taxi Cab and also sought for further reliefs or orders the Court may deem fit the Court has to consider the evidence on record both from the Plaintiff and the Defendant to determine whether a case is made out.
 Since both parties rely on the Police Accident report to make their case, I will deal with the significance of same in a matter like the one at bar. I note that over fifty years ago the issue of the significance of a police accident report in a motor vehicle accident suit was settled by the Supreme Court. The position of the law, as stated by the Supreme Court in the case of SAOUD BROTHERS AND ANOTHER v. BOATENG  1 GLR 405, is that a police report in respect of a motor related accident is the official report of the said accident. For that matter it is a very important piece of evidence which ought to be relied upon by a trial court in reaching its decision as to the liability of a Defendant in a negligence action involving a road accident.
 The Police accident report prepared after the investigation is supposed to be evidence of official duty duly performed by the Police on the accident that occurred on that July 3, 2012. Being official duty, it is presumed to have been regularly performed and valid. This is the common law expression of the law of the presumption that an official duty is deemed regularly performed.
 Indeed, Section 37 of the Evidence Act, 1975 has crystallized this common law principle into a statutory presumption. It provides:
Section 37—Official Duty Regularly Performed.
(1) It is presumed that official duty has been regularly performed.
 In the case of OKUDZETO ABLAKWA (No. 2) v. A.G. AND OBETSEBI LAMPTEY (No. 2)  2 SCGLR 845 @875, Brobbey JSC speaking for the Supreme Court had this to say about the above common law principle. His Lordship stated that “the applicable rule is the common law principle of Omnia praesumuntur rite esse acta. This principle has been codified in the Evidence Act, 1975 (NRCD 323). Section 37(1) which reads that: ‘(1) it is presumed that an official duty has been regularly performed”. This is only a presumption which is rebuttable. But Section 20 of the same NRCD 323 “imposes on the party against whom the presumption operates the burden of producing evidence and the burden of persuasion as to the non-existence of the presumed fact”. In fact, the view was taken by this court in GPHA v. NOVA COMPLEX LTD (2007-2008) 2 SCGLR 806 (in Holding one) that whenever the maxim applied, the person against whom it is invoked is at liberty to lead evidence to refute the presumption. ‘See also the application of the principle in ACHEAMPONG v. THE REPUBLIC (1996-97) SCGLR 566”.
 In this case as stated above both parties did not set out to rebut the presumption by way of the facts and conclusion of the police accident report. Therefore in my analysis the police accident report is important and crucial. I note that the 1st Defendant in this suit erected two main pillars as defence. First and foremost the 1st Defendant contends that the accident happened as a result of a brake failure and therefore it cannot be held liable. Secondly, the 1st Defendant contends that it cannot be held liable for the plea taken by the 2nd Defendant at the Madina District Court because it was done without its authorization. Counsel in her written legal submission cited and relied on such cases as ANSAH v. BUSANGA  2 GLR 488 and YAMUSAH v. MAHAMA AND OTHER  1 GLR 549 for the submission.
 On the first defence put up, learned Counsel relies on part of the accident report which states:
“7. No. GT 7387-12: Thorough examination was conducted on the above mention vehicle at the Kwabenya MTTU station in Accra in accordance to Police and the Case Officer request. However pipe burst in the highly compressed air braking system while the vehicle was in motion resulted in air pressure drop unable to activate the brakes to operate when the pedal was depressed causing the brakes to fail. Hence it is the BRAKE FAILURE that caused the accident”
Counsel stated at page 15 of the written submission that “my Lord, with the Report confirming that it was brake failure that caused the accident, this is clearly a mechanical defect which did not arise as a result of the fact that the Truck was purchased as a used vehicle. My Lord, this was a mechanical defect which neither the driver of the Truck nor the 1st Defendant could control. My Lord there is ample evidence before this Honourable Court as seen in the 1st Defendant’s Exhibit 1 and the Plaintiff’s Exhibit B that the accident was caused by a brake failure and nothing else”.
 Before I consider the defence put up and Counsel’s submission, it is also important to consider the contents of the official report being the Police Accident Report. I produce here below the concluding part of the report. It states:
“OFFICERI/C CASE: - Inspector B. Seidu
BRIEF FACTS: On 3/7/2012 about 6:20am, accused driver Tawiah Sowah was driving MAN DIESEL tipper truck No. GT 9387-12 with his mate on board loaded with sand from Nsawam to Madina. On reaching Kwabenya school junction, the accused driver alleged the brakes of the truck failed to hold when he applied same. As a result he moved into the opposite lane and crashed into Nissan Urvan bus No. GS 6721-10. The accused driver returned into its lane and crashed into Kia Bongo mini truck No. GT 5004-X and VW Golf saloon car No. GT 6079-B. He failed to stop and continued to Kwabenya White House which is about 600 metres away and crashed into a BMW Salon car No. GR 6281-V and Kia Pride Taxi cab No. GE5233-09 which were ahead of him. The accused driver again moved into the opposite lane and crashed into Mazda mini bus No. GE 3482-W, Opel Astra taxi cab No. GR 8917-T, Nissan Almera taxi cab No. GR 4466-12 and Kia Sephia taxi cab No. GE 2361-11. The truck finally fell into a gutter on the opposite side. Some passengers on board the Mazda bus and the Almera taxi can (sic) sustained various degrees of injuries. Damage was caused to all the vehicles.
RESULT OF POLICE CASE: On 20th day of July, 2012, accused driver was arraigned before Madina District Court on charges of careless and inconsiderate driving, negligently causing harm. Accused Tawiah Sowah pleaded guilty to the charges and convicted on his own plea to pay a fine of GH¢1,800.00 in default 24 IHL. Fine paid. Vide receipt No. NCRJ 0477076 dated 23/7/2012.
 From the above, it is clear that whilst the report which is the official report speaks to the brake failure as the cause of the accident, it cannot also be denied that the facts support the allegation of careless and inconsiderate driving and negligently causing harm charges which the 2nd Defendant driver pleaded guilty to. To my mind, whilst it is reasonable to account for the mechanical fault as a causal factor, there is no explanation based on the facts as to why the 2nd Defendant continued to drive on after colliding with about four vehicles to Kwabenya White House which is described to be “about 600 metres away” and further crashed into about three other vehicles before hitting the Plaintiff’s vehicle. Clearly the only conclusion I can come to based on a logical inference from the facts is the fact that the 2nd Defendant was speeding as well; to that extent and to my mind the brake failure alone cannot be used as an excuse for the collision with of the Plaintiff’s vehicle.
 On the available evidence before me therefore, it is my finding based on the Police Accident Report that it is clear the brake failure alone was not the cause of the massive damage done to the many vehicles the 2nd Defendant impacted on July 3, 2012. The accident and the destruction was due to the careless operation of the Man Diesel Truck by the 2nd Defendant which smashed the Plaintiff vehicle. It was due to his want of due consideration to other users of the road that led to the accident on July 3, 2012. Also, as far as the 2nd Defendant is concerned, it is indisputable that he admitted his own carelessness/negligence and liability to the events of July 3, 2012, not only by my finding above but his conduct in pleading guilty to the charges of careless driving and negligently causing harm arising out of the accident, I hereby hold.
 In the case of ANSAH v. BUSANGA SUPRA the Court of Appeal held through Anin, J.A at holding 2 that “An admission by a driver of his negligence for an accident involving his vehicle was not admissible against his employer unless he had the express authority of the employer to make the admission or else, the admission was part of the res gestae”. Relying on this decision the 1st Defendant says it did not authorize the guilty plea and therefore it is not bound by it. In the opinion of the Court whilst the first defendant’s position is the law and therefore legitimate, that position of the law is not absolute according to the same decision. I shall speak to this further in this judgment.
 Based on my holding that the 2nd Defendant was careless/negligent I hereby reject the two main pillars of the Defence erected by the 1st Defendant for the following reasons. First and foremost the 1st Defendant’s main defence to the claim was that the accident was as a result of a mechanical default by way of a brake failure. This I have found to be unfounded on the grounds that in crashing the Plaintiff’s vehicle it was due to the Driver’s carelessness because no further explanation is given as to how the Man Diesel came to fall on the Plaintiff’s vehicle in a gutter as shown in Exhibit “A’ many metres away from the first impact it had after the alleged brake failure.
 Secondly, having found that the 2nd Defendant was careless and negligent, it is my finding that the 1st Defendant is vicariously liable. Relying on the Ansah v Busanga Supra, it is a finding based on the evidence that the 1st Defendant admitted that it was the owner of the Man Diesel Tipper Truck and also admitted that on the day in question that is, July 3, 2012 the 2nd Defendant Driver was its employee and the accident happened in the course of his employment. It is therefore my holding relying on the conclusion of Justice Anin in the Ansah v Busanga case that in all the circumstances, therefore, the 1st Defendant’s vicarious liability for the carelessness/negligence of the 2nd Defendant driver and servant was adequately established because there is no explanation as to how the driver continued to drive the tipper truck in different lanes albeit after an alleged brake failure to a place more than 600 metres away after the brake failed to go and hit the Plaintiff’s vehicle if he was not overly speeding. In the absence of any explanation from the Defendants that they used all reasonable care in the management, control and driving of the vehicle at the said time and place I will find that the 1st Defendant is liable for the actions of the 2nd Defendant.
 Finally, on this point and on the issue of the 2nd Defendant pleading guilty without the authorization of the 1st Defendant, I hold that I once again reject the 1st Defendant’s position. I say so because while it is clear that in the 1st Defendant’s pleading and its witness’s evidence in chief the 1st Defendant in my respectful view created the impression that the 2nd Defendant driver ceased to be its employee on or about July 20, 2012, which curiously was the date the plea was taken and therefore suggested that the 1st Defendant was so appalled by the plea that it terminated the relationship, at trial, Mr. Kafui Letsa let the cat out of the bag. It is pertinent to re-state and reiterate what happened when he was cross-examined:
“Q: Where is the 2nd Defendant, the driver of the said vehicle?
A: I cannot answer this question.
Q: Is the 2nd Defendant still in your employment.
A: No my lord he is no longer in the employment of Today’s Logistics.
Q: When did the 2nd Defendant leave the employment of Today’s Logistics?
A: We parted way with the said employee three months after the said incident….
Q: You have told this honourable court that the 2nd Defendant left the employment of 1st Defendant three months after the incident, are you talking about October 2012?
A: Yes my lord. The said vehicle he was using was involved in an accident in July 2012 but the next month we could not repair the vehicle for him and so subsequently the contract came to an end between us and the driver”
 I note that the witness attempted to “undo the damage” of his testimony by giving a long explanation I respectfully did not find intelligible. To my mind the explanation he offered was clearly an afterthought and therefore I was not persuaded. Based on the evidence above therefore it is clear that the 2nd Defendant remained in the employment of the 1st Defendant as the servant of the 1st Defendant after the guilty plea until October 2012, three good months after accepting liability for the accident. To that extent in my respectful view that the position of the 1st Defendant that the plea was taken without its authorization and the submission of Counsel on the point on behalf of the 1st Defendant did not persuade me as legally commendable.
 Now, having found that the 2nd Defendant was careless/negligent and his negligence led to the accident and the destruction of the Plaintiff’s vehicle on July 3, 2012, I also find the 1st Defendant vicariously responsible for the negligence of its driver, Tawiah Sowah.
 Learned Counsel for the Plaintiff has submitted that the accident has had a negative effect on his client and thus she are entitled to the reliefs she seeks. Having already held elsewhere in this judgment that the 2nd Defendant was negligent and the 1st Defendant was vicariously liable, the Plaintiff is entitled to damages. It is trite that the remedy that may be available to a victim of a tort like negligence is an award of damages and the rationale is to put the victim in the same position as she was prior to the accident or the tort.
 On the issue of damages I wish to state that while I have no difficulty awarding the Plaintiff damages for the tort of the Defendants, I clearly have difficulty in dealing with the relief endorsed on the writ of summons based on the evidence. I am confronted with the challenge of dealing with a context in which, to my mind and with due respect to the Plaintiff and Counsel, they have made allegations about the price or replacement cost of the Nissan Almera vehicle which was destroyed beyond economic repairs according to the police consequent to the collision without proving same with cogent evidence.
 It is trite that where a party in a civil suit raises issues that are essential to the success of his claim, he assumes the onus of proof. Discharging this burden requires that a party go beyond merely repeating the averments in the pleadings on oath and produce evidence of other facts and circumstances from which the Court can ascertain that what she claims is true. Indeed, the principle of what constitutes proof was articulated and expressed in the celebrated and frequently cited decision of Ollenu J (as he then was) in the case of MAJOLAGBE v. LARBI  GLR 190. See also Sections 12 and 14 of the Evidence Act, 1975 (NRCD 323.
 The central issue is whether Plaintiff has led cogent evidence to warrant what she claims. My simple answer is no. I note that Counsel in his written submission has highlighted the evidence which was only a repetition of the pleadings without more to say that the Plaintiff is entitled to her claim. With the greatest respect, in as much as the court cannot minimize the loss to the Plaintiff, Courts only enjoy relative autonomy in doing justice in accordance with the law and based on the evidence. The Plaintiff ought to be reminded that every claim made ought to be proved on the balance of probabilities.
 I think this is a proper case to re-echo the wise words of Her Ladyship, Vida Akoto Bamfo JSC, in her introduction to the decision in the case of KLAH v. PHOENIX INSURANCE CO. LTD.  2SCGLR 1139 @ 1144. Her Ladyship stated:
“It is important to stress that the efficient conduct of a case includes the drafting of proper pleadings, the marshaling and adducing of the relevant evidence during the trial and the invocation of the correct principles of law. These are well-known basics. If counsel falls short in any of these areas, it may lead to failure of the action he or she has initiated; or, correspondingly, success of an action he or she is defending. In such a situation, it is no use for counsel to turn around and blame the court for allowing technicalities to frustrate its primary function of doing justice. Courts do justice according to law”.
 Having considered the evidence in its entirety and based on my analysis above, whilst I have no evidentiary basis to compel the Plaintiff to pay the current value of the replacement cost of the vehicle or order that a new vehicle be purchased for her and thus dismiss the claim. Based on the evidence however, I hereby award the Plaintiff compensatory damages for her loss being the destruction of her Nissan Almera vehicle as a result of the accident, I hereby grant the Plaintiff damages in the amount of GH¢25, 000. The Plaintiff Cost shall also be assessed at GH¢5,000