CYNTHIA AYIMAH vs EDWARD FIANKO & ELECTRICITY COMPANY OF GHANA
  • IN THE SUPERIOR COURT OF JUDICATURE
    IN THE HIGH COURT (GENERAL JURISDICTION DIVISION),
    ACCRA- A.D 2019
CYNTHIA AYIMAH - (Plaintiff)
EDWARD FIANKO AND ELECTRICITY COMPANY OF GHANA - (Defendant)

DATE:  30 TH JULY, 2018
SUIT NO:  GJ 991/2016
JUDGES:  JUSTICE KWEKU T. ACKAAH- BOAFO
LAWYERS:  ANNIE EMEFA FIAWOO (MRS.) FOR THE PLAINTIFF
JEMINA IREE ARYERE FOR THE DEFENDANTS
JUDGMENT

 

i. Introduction:

[1] By a writ of summons sealed at the registry of this Court on July 13, 2016 the Plaintiff claims against the Defendants:

i. A declaration that 1st Defendant was in the ordinary course of his employment with 2nd Defendant when he stabbed Plaintiff causing the injuries she sustained.

ii. A declaration that 2nd Defendant is vicariously liable for the conduct of 1st Defendant when he stabbed Plaintiff resulting in the injuries she sustained.

ii. A declaration that the act of 1st Defendant stabbing Plaintiff resulting in the injuries she sustained is trespass to her person by assault and battery.

iv. General damages

v. Costs

vi. Any other relief(s) this Honourable Court deems just and equitable.

 

[2] After the service of the writ with its accompanying statement of claim on the Defendants, an appearance was entered and later a joint statement of defence filed on behalf of the Defendants.

 

ii.The Issues

 

[3] The issues set out in the application for directions which were set down on the 17th day of November, 2016 were as follows;

Whether 1st Defendant assaulted Plaintiff?

Whether 1st Defendant committed battery of Plaintiff?

Whether the 1st Defendant was in the ordinary course of his employment with the 2nd Defendant when he allegedly stabbed Plaintiff causing the injuries she sustained?

Whether the 2nd Defendant is vicariously liable for the acts of 1st Defendant?

Any other issue(s) raised by the pleadings.

All the issues were adopted by the court for determination.

 

[4] At the trial the Plaintiff gave evidence and called no other witness to close her case. The 1st Defendant testified for himself after which one other witness was called to give evidence in support of the Defendants.

 

iii. The Case of the Plaintiff

[5] The Plaintiff’s testimony was in pith and substance in line with her pleading. She testified that her husband Mr. Benjamin Duffuor at all material times was an employee of Bank of Ghana (BoG) as Deputy Manager of Other Financial Institutions Supervision Department and so her family at all material times lived in House No. 2, Flat 3, First Shippi Close at East Cantonment, Accra. She testified that officers of the 2nd Defendant at different times visited the Bank of Ghana flat where she lived with her family three times and the 1st Defendant who is an employee of the 2nd Defendant was part of the officials who visited the house on all the three occasions.

 

[6] The Plaintiff told the Court that on the 3rd occasion when the officials of the 2nd Defendant came the 1st Defendant told her that he had been ordered to remove an installed meter at all costs so he was going to remove the said meter. According to her she pleaded with him but he declined and asked that “why my family were the only ones still in occupation of the property when everyone else had vacated the property”. She said during the conversation “I stood by the meter and then in a bit of time, I saw 1st Defendant coming towards me with a screw driver and a plier in his hands and as he approached me he kept saying “I have to take this meter at all cost”.

 

[7] According to the Plaintiff before she realized 1st Defendant held her by the neck violently, whiles holding the working tools, after which “he pulled my right arm and held my waist in a bid to push me away from where I stood”. She further testified that she came back to stand in front of the meter and the 1st Defendant realizing that she will not move stabbed her wrist very close to her right index finger with the screw driver. According to the Plaintiff during the incident two colleagues of the 1st Defendant were behind the property and they came to the scene when she shouted after she was stabbed. She further testified that the 1st Defendant knowing what he had done asked a colleague to take photographs to show that the Plaintiff was obstructing him in the performance of his duties.

 

[8] The Plaintiff testified that as a result of the injury sustained she first attended hospital and was later referred to a specialist orthopedic surgeon who performed a surgery on her finger. She also testified that she incurred some costs as a result of the injury sustained. She therefore claims against the Defendants and implored the Court to grant her reliefs.

 

[9] The Plaintiff tendered in support of her case, the following exhibits:

i) Exhibit A, A1, A2 – Photographs showing the incident;

ii) Exhibit B – A copy of Police Medical form the Plaintiff used to go to the hospital;

iii) Exhibits C – A copy of X-ray request form, X-ray report and a photograph of the finger;

iv) Exhibits D – A referral letter to a specialist Orthopedic Surgeon at Korle-Bu;

v) Exhibit E – An X-ray photograph dated 17th March, 2016;

vi) Exhibit F and F1 – According to the Plaintiff they are pathological findings at the Ghana Standards Authority showing “masses of tumours”.

vii) Exhibit G, G1, G2 and G3 – Photographs of her finger after surgery;

viii) Exhibit H – Receipts evidencing the costs incurred by the Plaintiff.

 

iv. The Defendants’ Evidence

[10] The 1st Defendant testified that he visited the Bank of Ghana flats where the Plaintiff lived on two occasions. According to him on the first visit he met a gentleman he later got to know to be the Plaintiff’s husband. He testified that on the first visit he did not meet the Plaintiff. He told the Court that he was asked to attend at the house to remove the meters which are the property of the 2nd Defendant at the request of the Bank of Ghana to enable a demolishing exercise to take place. According to the 1st Defendant, the gentleman informed them he was not going to allow them to remove the meters because “he had some issues with his employer already and that this was a plan engaged by his employer to frustrate him”.

 

[11] The 1st Defendant further testified that he called his boss who after talking to the said gentleman asked that they return to the office. He said his boss informed him the gentleman had been given two weeks to resolve whatever issue he had with his employers. He said on that occasion some other meters that were affixed to some flats at the boys-quarters which had no occupancy were removed.

 

[12] The 1st Defendant testified that he attended at the flat almost three weeks later after he was sent in the company of one Yussif Adamu, a Technical Engineer of the 2nd Defendant to remove the other meters. According to him it was to avoid the destruction of the meters since the Bank of Ghana had communicated to them that they intended on going ahead with the demolition. According to the 1st Defendant it was on this visit that he met the Plaintiff. He said the Plaintiff pleaded with them not to remove the meter because it would interrupt the power supply to her home. He said he explained to the Plaintiff that the removal of the meter would not interrupt with the power supply to the house because the entire building had an underground direct connection system but she refused to accept.

 

[13] According to the 1st Defendant he realized that the main reason for the Plaintiff resistance to the removal of the meter had nothing to do with the power supply but because she believed that her husband’s employers were using the 2nd Defendant to frustrate them. The evidence of the 1st Defendant was that the Plaintiff shouted, abused, pushed and shoved him all in the attempt to prevent him from removing the meter. He denied assaulting the Plaintiff and told the Court that he asked a colleague to take the photos of the Plaintiff preventing him from doing his work because of the abuse hurled at him by the Plaintiff. He denied that the meter was not removed and also denied assaulting the Plaintiff. He tendered as Exhibits 1 and 2 being the letter from the dated 7th February, 2013 to request the disconnection of power from its flats and the photographs taken during the incident.

 

[14] Mr. Yusif Adamu testified for the Defendants. He corroborated the 1st Defendant’s testimony to the extent that he was aware that the Bank of Ghana flats located at East Airport were due for demolition and it was the reason why the Bank of Ghana requested the 2nd Defendant as owners of the meters to go and remove them. Mr. Adamu further testified that the 1st Defendant did not touch, assault and/or manhandle the Plaintiff. According to him it was the attitude of the Plaintiff that caused the 1st Defendant to request him to take the photographs of “what was happening as proof of the obstruction to work which is a criminal offence”. In a nutshell he supported the 1st Defendant denial of assault of the Plaintiff.

 

v. The Evaluation of the Evidence, the Court’s Opinion & Analysis

[15] I start my analysis by first stating that the court finds from the evidence on record that the 1st Defendant was in the ordinary course of his duties as an employee of the 2nd Defendant and therefore should the Court find him liable of the allegations, the 2nd Defendant would also be held vicariously liable.

 

vi. Findings of Fact

[16] From the unchallenged evidence, I have no difficulty in coming to the conclusion that the 1st Defendant as an employee of the 2nd Defendant attended at the Plaintiff’s home to perform an official duty. I also find as a fact that at all material times the Plaintiff was determined to prevent the 1st Defendant from removing the meter which I also find belongs to the 2nd Defendant and not the Bank of Ghana.

 

[17] It is also my finding that the Plaintiff was injured in the course of an altercation between herself and the 1st Defendant. It is also my finding that as a result of the injury sustained the Plaintiff had a surgery and therefore I accept as a fact that the Plaintiff incurred financial cost for the treatment and also on medication.

 

[18] Now, having so found, I hereby consider what in my view is the most important of the issues raised which is whether or not the 1st Defendant assaulted the Plaintiff or in other words is the 1st Defendant liable for the injury sustained by the Plaintiff as a result of the altercation I have found occurred?

 

[19] The general position of the law is that each party to the suit who alleges per their claim must adduce evidence on the facts and issues to be determined by the court to the prescribed standard set by statute Section 14 of the Evidence Act (NRCD 323) 1975 provides.

“Except as otherwise provided by law, unless and until it is shifted, a party has the burden of persuasion as to each fact the existence or non – existence of which is essential to the claim or defence he is asserting”

 

[20] This general position on the burden of proof and of persuasion has had judicial approval by the Supreme Court in 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”.

See also the case of RE: ASHALLEY BOTWE LANDS, ADJETEY AGBOSU & OTHERS V. KOTEY & OTHERS [2003-2004] SCGLR 420.

 

[21] Counsel for the Plaintiff strongly submitted that the 1st Defendant is guilty of assault based on the law and relied on the old English case READ v. COKER [1853] 138 E.R. 2437 and the statement of Jervis CJ that “…if anything short of actual striking will in law constitute an assault, the facts here clearly showed that defendant was guilty of assault. There was a threat of violence exhibiting an intention to assault, and a present ability to carry the threat into execution”. According to Mrs. Fiawoo Exhibit A, A1 and A2 support the case of the Plaintiff’ because the photographs show the first Defendant holding a screw driver which he held in a fist. According to Learned Counsel the presence of the screw driver at the material time shows that the 1st Defendant indeed assaulted the Plaintiff by stabbing her with same. She has therefore urged me to so find.

 

[22] Counsel for the Defendants on the other hand also relied on another old English case titled COLE v. TURNER (1704) 6 Mod. 149 and the statement of the law by Holt C.J. to the effect that “if one man intentionally applies force directly to another, the Plaintiff has a cause of action in assault and battery, or, if you so please to describe it, in trespass to the person. The least touching of another in anger is a battery”. According to Learned Counsel it is imperative for this Court to determine if indeed on a preponderance of probabilities, the Plaintiff suffered direct and intentional application of force by the 1st Defendant or that the 1st Defendant touched her in anger. According to Counsel for the Defendant, based on the law the Plaintiff woefully failed to discharge the burden of proof and therefore I should dismiss the claim.

 

[23] In the instant case, it is clear in my view that for the Plaintiff to succeed in proving her claim that the 1st Defendant assaulted her and in effect establish that he is liable for the injury she sustained she had to prove that the 1st Defendant intentionally applied force directly to her person by using the screw driver to stab her.

 

[24] To my mind it is important for the Court to interrogate the testimony of the Plaintiff in resolving the main issue as the Plaintiff has the onus of proof. As per her evidence in chief she testified per the adopted witness statement as follows from paragraph 19 - 24:

“At that moment, some two men from the neighbourhood came around, and then I saw the three employees of the 2nd Defendant talking amongst them.

All this while I stood by the meter and then in a bit of time, I saw 1st Defendant coming towards me with a screw driver and a plier in his hands and as he approached me, he kept saying “I have to take this meter at all cost”.

Before I realized, 1st Defendant held my neck violently, whiles holding the working tools, after which he pulled my right arm and held my waist in a bid to push me away from where I stood.

I came back to stand in front of the meter; and 1st Defendant realizing that I did not want to leave the place, stabbed me in my right wrist very close to my right index finger with it.

I was in so much pain so I bent down for a while; then he took out a wire from the meter,

whereupon I began to shout and I asked 1st Defendant if he wanted to kill me because of a meter.

Due to my shouting, 1st Defendant’s two other colleagues and the two other neighbours who were behind the property came around; and knowing very well what he had done, 1st Defendant asked his colleagues to take photographs to show that I was obstructing them in the performance of their official duty, which pictures his colleagues did take with their mobile phones. Attached to this witness statement is a copy each of the said photographs as Exhibits A, A1 and A2”.

 

[25] In my view, the above testimony is the crux of the matter. Now, is there any air of reality to the Plaintiff’s testimony above? How possible was it for the 1st Defendant to hold the Plaintiff’s neck violently, while holding his working tools, being the screw driver and a pair of pliers, and at the same time hold her waist to push her away? Of a truth I find it difficult to comprehend and accept. How can a person hold tools, hold a neck and at the same time hold a waist/right arm of another person at the same time with his two hands? With respect to the Plaintiff I do not believe her on this point because it is not consistent with common sense.

 

[26] Again, another aspect of the above evidence which did not make sense is in regards to the photographs. From the above testimony, the impression is created that they were taken after the alleged stabbing but a closer look of the photographs show that there is no indicia of the injury such as blood from the injury and/or any other sign of it. Rather to my mind the photographs represent the struggle between the Plaintiff and the 1st Defendant and his colleague as she struggled with them to prevent them from removing the meter before and not after the injury. Exhibit “A” clearly shows the Plaintiff’s right hand holding onto the left hand of the 1st Defendant. The 1st Defendant’s right hand is holding a screw driver which is pointing downwards and in no harm’s way of the Plaintiff. The look on the face of the Plaintiff shows she is either shouting or talking while the 1st Defendant is smiling. There is a similar struggle between two men and the Plaintiff in Exhibit A2 as well. To my mind the photographs to do not support the Plaintiff’s allegations at all.

 

[27] It is clear from what unfolded as depicted in the exhibits referenced above that the Plaintiff was determined to prevent the 1st Defendant and his colleague from removing the meter similar to what she pleaded in paragraph 15 of her statement of claim, wherein she pleaded that on November 11, 2013 she prevented the 2nd Defendant’ employees from removing the meter so they left. I therefore have no doubt in my mind that on this occasion as well she was the aggressor and not the 1st Defendant.

 

[28] I therefore hold that the Plaintiff sustained the injury as a result of her struggle with the 1st Defendant who was holding the tools he use to work. I am not convinced that the 1st Defendant applied force intentionally to injure the Plaintiff. Based on the evidence I am not convinced that the Plaintiff has proved her case on the balance of probabilities to entitle her to the claims she seeks. Examining the Plaintiff’s testimony in the light of its internal consistency and its consonance with the other evidence heard and before the Court and with the probabilities inherent in the circumstances, it is my judgment that the Plaintiff’s evidence led is not worthy of any credit and I do not believe her. I found that the Plaintiff was often evasive and some of her answers with respect did not make sense.

 

[29] One instance where the Plaintiff’s testimony was given to protect her own interest is as captured in her cross-examination by the Defendant’s Counsel on May 9, 2017. Below is a reproduction in part of the exchange between Counsel for the Defendant and the Plaintiff during cross-examination of the Plaintiff:

“Q: I refer you to your Exhibit “A”, are you not holding the hand of the 1 Defendant in that picture?

A: No is just touching it.

Q: I refer you to Exhibit “A1” and the Defendant proposed Exhibit “2A”, are you not still seen holding the hand of the 1st Defendant?

A: No

Q: Have a look at your Exhibit “A2” which is Defendant’s proposed Exhibit “2B”, doesn’t this picture also depict you holding the hand of the 1st Defendant to prevent him from removing the meter?

A: No my hands are on my chest, you can only see my elbow you can’t see the rest.

Q: so it is your case that at no particular time did you try preventing the Defendant from removing the meter?

A: I did but I didn’t hold him.

Q: And how did you do that?

A: I was standing in front of him raising my hand to prevent him from taking the meter.

 

[30] On June 2, 2017 whilst testifying in regards to the medical reports tendered the following as ensued between the Plaintiff and Counsel for the Defendants.

“Q: Exhibit “B” further says that you were treated and discharged is that not so?

A: Yes

Q: So you want this Court to believe that two years after you were treated and discharged you developed a growth which can still be linked to the incidence of 28th of November, 2013?

A: Yes

Q: Do you agree with me that during that period of two years anything could have happened that could have resulted in growth of tumours in your finger?

A: That is not true. The same place I had the problem is the same place I continue to have the problem.

Q: Did you bother to ask your doctors what could lead or cause giant cell tumour?

A: Yes

Q: And what did your doctor tell you?

A: It can be an injury caused by violence.

Q: Did your doctor add that it could also be naturally occurring?

A: They only explained to me what caused my own?

Q: So the doctor gave you the impression that there was only one cause to this condition is that what you are telling the Court.

A: Because I was interested in my case so he explained to me what caused my problem….

Q: You told this Court at paragraph 30 of your witness statement that the radiologist said there is a hole in the bone of your index finger. Can you show this Court where in Exhibit “C1” this information by the radiologist can be found?

A: Exhibit C1 first paragraph and the last but one

Q: Can you read the paragraphs you have identified to the Court?

A: Witness reads to open Court

Q: Do you know the meaning of what you just read?

A: I know is a medical term but it was explained to me that is a hole…

Q: Take a look at Exhibit C1 that report says at the second line, “No fracture seen” is that not more of a description of non-existence of a hole in your finger?

A: Fracture is a different from a hole”.

 

[31] Clearly, from the above discourse it is clear that the Plaintiff’s answers were given with her own interest in mind. Without doubt, the Plaintiff’s own evidence to the Court, in relation to the photographs and the medical reports clearly demonstrate that Ms. Ayimah was economical with the truth. On the whole, I was not impressed with her testimony on the key parts of the evidence. I assessed her as a witness who was selective as to what she was prepared to tell the Court and admit. She did not present herself as a witness who was being entirely candid. Her testimony was given with a view to her own interest rather than in accordance with the oath which she had taken.

 

[32] I wish to state that my above findings against the Plaintiff should not in any way shape or form be interpreted that the 1st Defendant who testified was a credible witness. In my respectful opinion, the main actors in this case, being the Plaintiff and the 1st Defendant as witnesses demonstrated serious credibility shortcomings, but it is trite that the Plaintiff wins her case based on how she discharges the onus placed on her before same could be shifted unto the Defendant, in other words on the merits of her case and not the weakness of the Defendant’s case. In this case I am of the respectful view that the Plaintiff has failed.

 

[33] Having reviewed the evidence and the record before me, even though I am troubled by the injury the Plaintiff sustained as a result of what happened, I find that she is not entitled to any of her claims and thus dismiss the Plaintiffs claim. Now, having found that the 1st Defendant is not liable for assaulting the Plaintiff based on the facts of this case and the law and thus cannot in law be held liable for the Plaintiff’s injury, I also find that the 2nd Defendant cannot be vicariously responsible for anything.

 

Conclusion and Disposition:

[34] Before I sign off I wish to state that I am troubled by the facts and the circumstance of this case and what obviously led to this unfortunate injury of the Plaintiff. Indeed if the Plaintiff and the husband truly believed that the Bank of Ghana was using the 2nd Defendant as a surrogate to do their bidding of getting them off the property at East Cantonment why did they not go to Court to stop the 2nd Defendant from coming over to the flat to remove the meter which undoubtedly was its property? To be blunt the Plaintiff’s approach in this case with respect was not wise. To take the law into her own hands to prevent the officers of the 2nd Defendant was dangerous and unacceptable.

 

[35] Her behavior to my mind raises a supplemental question which is whether or not this Court should endorse such an approach where a citizen of this Republic is allowed to take the law into his or her hands to prevent another from performing his lawful official duty when there is no legal injunction or impediment under the guise of protecting “his space”; and if an injury occurs as in this case the same belligerent person then comes to the Court to seek damages. To my mind the Court should not endorse such a behavior because that would potentially render our society to the dynamics of a Hobbesian state of anarchy and chaos.

 

[36] Finally, I am grateful to both Counsel for their assistance. They represented their clients with candour and respect for each other and I was impressed. On Cost I am inclined to say the parties should bear their cost because of the circumstances of this case.

 

Ordered accordingly.

 

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