i. Introduction:

[1] To lose a loved one is to be bereaved, and the emotional experience including coming to terms with the loss is in the realm of grief. In this regard, the Plaintiffs as part of their grieving and to finally come to terms with the loss of their beloved daughter have brought this action against the Defendants herein for certain reliefs endorsed on the writ of summons. This action arises out of a vehicle accident that occurred on August 24, 2016, when the Plaintiffs’ daughter, Narki Oswell Narh (deceased) in the company of her friend Helen Oba Kintor (also deceased) were knocked down, sustained some injuries and subsequently succumbed to their injuries. The accident occurred when the deceased was crossing the road as pedestrians at Labone Police Barracks, in Accra. The vehicle was being driven by the 2nd Defendant, Michael Oduro, and owned by the 1st Defendant Westec Security Services. The deceased sustained severe head trauma and was rushed to the Police Hospital for treatment. Due to the severity of the injuries, she was later transferred to the 37 Military Hospital for further treatment but she died few days later in the course of receiving treatment. A police accident report was prepared but there is no evidence that anyone was charged and prosecuted.

ii. The Action:

[2] On the 12th day of May 2017 the Plaintiffs caused the writ of summons accompanied by a statement of claim to issue against the Defendants for the following relief:

(i) Damages of One Million Ghana Cedis (GH¢1,000,000.00) for percuniary loss to each of the Defendant herein.

(ii) Special damages of GH¢14, 146.00.

(iii) General damages for pain, mental shock and distress.

(iv) Attorney fees assessed at 20% of the sums of the damages herein claimed or awarded;

(v) Any further reliefs (s) as this Honourable Court may deem fit.

[3] The Defendants entered appearance on May 30, 2017 and subsequently filed a Statement of Defence on July 14, 2017 and denied liability for the Plaintiff’s claim and counterclaimed for:

i. Damages;

ii. Interest to be assessed thereon; and

iii. Costs.

[4] The Plaintiffs filed a reply and defence to counterclaim on July 27, 2017. At the close of the Pleadings the Plaintiff filed application for directions on August 31, 2017 and set out the issues for the determination of the Court.

iii. The Issues:

On September 20, 2017 the parties agreed that the following issues be set down for determination by the Court:

Whether or not the 2nd Defendant failed to exercise due care and attention in the course of driving when the car being driven by him veered off the road unto the pedestrian walkway and crushed into the Plaintiff’s daughter (the deceased).

Whether or not the deceased caused or contributed to the accident which led to her death?

Whether or not the death of the deceased is a direct result of the injuries caused by the accident?

Whether or not the 1st Defendant is vicariously liable for the negligent acts of the 2nd Defendant?

Whether or not the Plaintiffs have lost a reasonable expectations of percuniary benefit as a result of the death of their daughter?

[5] At the trial the 1st Plaintiff testified for himself and the 2nd Plaintiff and called no other witness to close their case. The 2nd Defendant testified for himself and the 1st Defendant and called no other witness and closed the Defendants’ case. I note that a witness statement was filed in the name of one Ismael Laryea but he was not called to testify at trial and therefore same was abandoned.

v. The Case of the Plaintiff:

[6] The case of the Plaintiffs as averred in the statement of claim and also testified to per the witness statements filed and adopted was by the 1st Plaintiff who is a Sergeant of the Ghana Police Service. Mr. Tetteh Narh testified that the Plaintiffs are the parents of the late Oswell Narkie Narh (Deceased). According to the Plaintiffs on the afternoon of August 24, 2016 the deceased and her friend were crashed by a vehicle owned by the 1st Defendant and was driven by the 2nd Defendant close to the entrance of the Labone Police Barracks. The 1st Plaintiff further testified that the impact of the crash threw the deceased persons violently onto the street causing severe injuries to them.

[7] The 1st Plaintiff further testified that the deceased and her friend were rushed to the hospital for treatment first at the Police Hospital and later at the 37 Military Hospital. According to Mr. Tetteh Narh on reaching the hospital he saw his daughter had sustained severe injuries, including broken legs at multiple places, had a cut at the back of her head and her face was also swollen. According to him though the doctors did their best his daughter later died from her injuries. The Plaintiff tendered as Exhibit “A”, a picture of the 1st Defendant – Westec vehicle and Exhibit “B”, a photograph of his daughter receiving treatment after the accident.

[8] At paragraph 20 of the adopted witness statement the Mr. Tetteh Narh stated that “Michael Oduro, an employee of Westec Security Services, who was driving the car of his employers at the material time with Registration No. WS 8-09, showed us the exact place the accident occurred after which the police took measurements of the scene. We thereafter signed a police report which was based on what transpired at the scene of the crime. Attached herewith and marked Exhibit “C” is a copy of the said police report”.

[9] Based on all of the facts it is the case of the Plaintiffs and they attribute the cause of the accident on that fateful day to the negligence of the 2nd Defendant, Michael Oduro whom the Plaintiffs particularly accused of dangerous driving under the circumstance; driving at top speed, driving without observing, controlling and not managing the vehicle in such a manner as to avoid the occurrence of the accident and driving without due regard to other road users

[10] The 1st Plaintiff informed the Court that at the time of her untimely death, the deceased was a student of Krobo Girls Senior High School and she had the dream of becoming a lawyer in the future. Mr. Tetteh Narh further testified that his daughter’s death has shattered his life and that of his wife, the 2nd Plaintiff and “my wife and I can never recover from this very painful and untimely death of our beloved daughter”. The Plaintiffs have urged on the Court to grant them their reliefs endorsed on the Writ of Summons.

vi. The Defendants’ Case:

[11] The Defendants’ evidence was proffered by the 2nd Defendant, Mr. Michael Oduro. He adopted the witness statement filed on October 30, 2017 as his evidence in chief. The pith and substance of it was that he has been a driver for over twenty years and spent the last seven years driving for the 1st Defendant Company. He testified that on the day in question at about 15:30 hours he was driving the Company’s Hyundai Saloon car with registration number WS 9-08 on the Ring Road Central from Labadi towards Danquah Circle. He said he had in the vehicle one Ishmael Laryea, an employee of the 1st Defendant Company. It is his case that on reaching a section of the road, which is a dual carriageway, and near to the Vertinary Junction, he came across a commercial public transit

vehicle, known in the local parlance as “tro-tro” parked in the outer lane immediately past the junction with passengers boarding and alighting simultaneously.

[12] Let us hear from Mr. Oduro in his own words from paragraphs 8 to 15 of his evidence:

“As the ‘tro-tro’ was occupying the lane I was using, I had to manoeuvre my vehicle to the inner lane of the dual carriageway.Immediately after going past the ‘tro-tro’, I was suddenly confronted with the sight of two (2) deceased persons, negligently trying to cross the road. Apparently, they were attempting to cross the road and had come in front of the stationary ‘tro-tro’ without checking to see whether any vehicle was approaching from their blind side. As they stepped in front of my vehicle, I immediately applied my brakes as there was no way I could have seen them in advance, given their respective position in relation to where I was coming from. Alas, it was too late and my vehicle hit both of them.The impact of the vehicle on hitting them made them fall down. The car hit them in the middle of the outer lane close to the dividing traffic line, which separates the outer and inner lanes. The deceased sustained injuries so I rushed them to the Police Hospital in Labone for treatment”

[13] Mr. Oduro further testified that after handing the deceased over to the Hospital authorities he went to the Cantonments Police MTTD to formally report the accident. He also testified that he was arraigned before the La District Magistrate Court on provisional charges of careless and inconsiderate driving and negligently causing harm but the matter was stayed to await the Attorney General’s advice and confirmation of withdrawal of the charges. He also testified that the accident was totally avoidable if the “deceased had exhibited caution in crossing the road”. He also stated that “I wish to take this opportunity to express my heartfelt condolences to the family of the deceased for their loss”. According to him he is deeply troubled and affected psychologically by the death and he is yet to come to terms with the pain and sorrow of the family and friends of the deceased.

[14] In the main, he denied been reckless and negligent. He said he was driving at a speed commensurate with that part of the road, that is 50km/hour and he obeyed all the driving obligations. In nutshell the above is the evidence the Court heard.

vii. Findings of Fact

[15] From the unchallenged evidence, I have no difficulty in coming to the conclusion that the deceased, Oswell Narkie Narh was struck by the 1st Defendant’s vehicle, a Hyundai Saloon vehicle with Registration Number WS 9-08 on August 24, 2016 along the Ring Road East from the La direction towards Danquah Circle in Accra. I also find that at all material times the said vehicle was under the control of 2nd Defendant, Michael Oduro.

[16] It is also my finding that as a result of the incident the deceased sustained injuries and was rushed first to the Police Hospital for treatment and later to the 37 Military Hospital but she died whilst receiving treatment and was buried on September 17, 2016. Therefore the death of the deceased is a direct result of the injuries sustained.

[17] It is also my primary finding that the deceased at the time of her death was a student of Krobo Girls Senior High School. I also find as a fact that the police investigated the incident and wrote a report.

The Court’s Analysis, Opinion & Conclusion:

[18] 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”

[19] 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.

[20] In the opinion of the Court the most important and fundamental issue for the court to and resolve the issue between the parties is the issue (i) being whether the 2nd Defendant failed to exercise due care and attention in the course of the driving. In other words;

i) Whether or not the accident on 24^th August, 2016 was as a result of the negligence of the 2nd Defendant and consequently;

ii) Whether or not the Plaintiffs are entitled to their claim

In effect, negligence is the centrepiece of the Plaintiffs’ case and the anchor of the claim. The question is has negligence been established and would the anchor hold after examining all of the evidence?

[21] First and foremost, it is important to note that the 1st Plaintiff who testified before the Court was not present when the incident happened. The 2nd Defendant, the driver who was present testified and denied the allegations that he drove without requisite care and attention. I note that, the 1st Plaintiff’ also in his testimony in chief told the Court that measurements were taken at the scene of the accident and also confirmed that the police report was based on what transpired at the scene. I will later speak to the police accident report in my analysis.

[22] Learned Counsel for the Plaintiffs, Mr. Emmanuel Ewul, in his written submission to the Court has spent a lot of time on what is negligence in law and profoundly submits that though the Plaintiff who is alleging negligence has the burden of proof, “there are certain instances where the establishment of certain facts by the Plaintiff would raise a presumption of negligence on the part of the Defendant and it behoves on such a Defendant to persuade the court that he or she had not been negligent”. This according to Counsel is the maxim of “res ipsa loquitur”. Counsel has submitted that based on the fact of this case the maxim is applicable. With respect to learned Counsel the maxim is applicable when there is no explanation to an incident. In this case the 2nd Defendant has given an explanation as to what happened. Whether or not his explanation is believable and acceptable is another matter all together.

[23] According to learned Counsel, with respect to the proper conduct of vehicles in the vicinity of bus stops, cars must be seen to be slowing down and eventually ending up motionless when approaching a bus stop. In the view of Counsel any “reasonable driver when reaching a bus stop ought to slow down in order to see and avoid any potential danger including crashing into the deceased persons in this case” According to learned Counsel “where a vehicle, being driven at a high speed over and above 50km/hr crashes into two pedestrians whilst they are standing at the bus stop, a presumption of negligence is raised on the part of the driver of the vehicle and the maxim of res ipsa loquitur would apply in such a case”. Counsel has cited many cases including SCOTT v. LONDON AND ST. KATHERINE DOCKS CO. (1865) 3 H&C 596 and DUMGYA v. SPORTS COUMCIL OF GHANA [1974] 1 GLR 429 to support his submission.

[24] Whilst learned Counsel may be right in regards to the law he quoted in my respectful view Counsel misinformed himself because his submission is not borne out by the evidence. First and foremost even though Counsel repeatedly in his cross-examination suggested that the deceased was knocked down at a bus stop, the only person who was at the scene of the accident denied same. Also, in my respectful view there is no evidence that the driver was speeding and therefore Counsel’s submission is misleading. I note that Counsel sought to leverage the testimony of the 2nd Defendant in regards to where the deceased was when she was hit by the saloon car. This is what transpired on 7^th June, 2018 when he cross-examined the 2nd Defendant:

“Q: Exhibit “A” was the state of your car immediately after you crashed into the deceased persons?

A: This is so

Q: So I am suggesting to you that had you been driving at the required speed of 50km/hr or below your car would not have sustain this magnitude of damage upon crashing into the deceased persons?

A: I was driving at 50km/hr.

Q: I am suggesting to you that had you been driving at the required speed of 50km/hr or below you would have had enough time to react and apply your brakes to prevent crashing into the deceased persons at the bus stop and whilst they were standing at the bus stop?

A: The deceased persons were not standing at the bus stop, they crossed me and the car knocked them on the road.

Q: You remember for a fact that you unequivocally intimated to this court at the last sitting that you crashed into the deceased persons whilst they were standing at the bus stop?

A: The last adjourned date when the question was posed to me I did not get the question well.

Q: I suggest to you that you are not being truthful to this Honourable Court and this particular testimony of yours is of no assistance to this Court.

A: I did not get the question well that they were standing at the bus stop.

Q: But you very well agree with me that these are the same conditions and the circumstances under which you were being cross-examined at the last sitting’

A: I agree”

[25] I say Counsel has overblown the above evidence of the 2nd Defendant because the issue of the deceased standing at the bus stop is only a suggestion of learned Counsel and stands in isolation to all of the evidence heard. In the absence of any testimony to substantiate the assertions that the driver was speeding and did not control the vehicle with road users in mind etc made in the pleadings filed, Plaintiffs’ Counsel’s reliance such pleadings are of no extra help to this court.

[26] The issue for my determination therefore is has the Plaintiff proved the allegations that the 2nd Defendant was negligent? In answering this question, I would turn to Exhibit “C”, the police accident report tendered by the 1st Plaintiff. I turn to it because the 1st Plaintiff told the Court that “it was based on what had transpired”. Also, I am of the opinion that as a documentary evidence, it is authentic and relevant piece of evidence. Relevance consists of two components: materiality and probative value. The term materiality is concerned with the relationship between proffered evidence and the issues in the case. Relevant evidence is evidence that has a tendency to make the existence or non-existence of any fact that is material to the determination of a material fact or issue more probable or less probable than it would be without the evidence.

[27] Put differently, the issue is whether the police accident report has some tendency, as a matter of logic and common sense, to make the proposition for which it is advanced to help the Court to resolve the issue at stake, namely whether the 2nd Defendant was negligent, more likely than that proposition would appear in the absence of that evidence. [1]

[28] Also, I am turning to Exhibit “C” because I am guided by the principle articulated many years ago by the Supreme Court in the case of SAOUD BROTHERS AND ANOTHER v. BOATENG [1964] 1 GLR 405, 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.

[29] 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 fateful August 24, 2016. 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.

[30] 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.

[31] In the case of OKUDZETO ABLAKWA (No. 2) v. A.G. AND OBETSEBI LAMPTEY (No. 2) [2012] 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”.

[32] So what does the official report says? I produce here below the concluding part of the report. It states:

“THE FACTS: On 24/8/16 at about 3:30pm, suspect driver Michael Oduro an employee of Westec Security Services Limited was driving the company’s Hyundai I 30 vehicle with registration no. WS 8-09 along Ring Road East from La direction towards Danquah Circle. On reaching a section of the road near Labone Police Barracks junction, he knocked down two young students by names Oswell Narkie Narh aged 16 years and Obah Kintor Helen aged 16 years. They sustained serious injurious and were rushed to the Police Hospital for treatment and were referred to 37 Military Hospital and Korle-Bu Teaching Hospital respectively for the treatment but both of them died on admission.

RESULT OF POLICE ACTION: Case under investigation”

[33] From the above, it is clear that there is no indication that the deceased was crossing the road at a pedestrian crossing and/or at a bus stop. There is also no indication that the driver was driving at excessive speed and/or drove recklessly when he knocked down the deceased and also that the 2nd Defendant failed to observe traffic regulations and pay attention to other road users. As indicated, it was the Plaintiffs who tendered the report.

[34] I note that Plaintiffs’ Counsel has invited me to find that the 2nd Defendant was negligent because among other issues raised including the fact that he was speeding, the damage of the vehicle, Hyundai Saloon car suggest that he was speeding. The Court’s simple response to the invitation is that the process of drawing inferences from evidence is not the same as speculating even where the circumstances permit an educated guess. I am required to make findings based on the evidence. I do not think there is anything from the evidence heard and the exhibits tendered that would reasonably permit me to infer and conclude that the 2nd Defendant driver was speeding and therefore was negligent. It is important to point out that supposition or conjecture is no substitute for evidence and cannot be relied upon as the basis for a reasonably drawn inference in this case. A reasonably drawn inference requires an evidentiary foundation which in this case is lacking.

[35] On the available evidence therefore, it is my finding based on all of the evidence that on the balance of probabilities there is no credible evidence that the 2nd Defendant driver was negligent when he knocked down the deceased along the Ring Road East towards Danquah Circle on August 24, 2016. It is clear that it was an accident, the cause which could not be attributed to the driver. There is therefore no cogent evidence that the Defendant Defendant was culpable for the accident. In arriving at the above conclusion, I reject the submission of Counsel that the accident occurred at a bus stop and was speeding. I consequently answer the first issue set out in paragraph 20 supra against the Plaintiffs that the 2nd Defendant was not negligent.

[36] The Plaintiffs’ claim is for damages, which is one of the several remedies that are open to a Plaintiff who suffers injury or harm as a result of the tortuous act or breach of contract of another. In law, damages are awarded as compensation by a Court to a Plaintiff/Claimant for harm, loss or injury suffered as a result of a tort suffered or a breach of contract.

[37] Now, having found that the 2nd Defendant was not negligent and therefore not culpable for the accident that led to the unfortunate demise of the deceased, I also find that the 2nd Defendant cannot be vicariously responsible for anything. If Michael Oduro was not responsible for the death of the deceased then the 1st Defendant is not liable to pay any compensation to the Plaintiffs. It follows therefore that my analysis ends here as it will serve no useful purpose to consider the claims in respect of the loss Plaintiffs contend they incurred and the damages they claim.

Conclusion & Disposition:

[38] Consequently, I find that the Plaintiffs are not entitled to their claim and I hereby dismiss all the claims. I can only re-echo the wise words of the late Chief Justice of this Republic whilst sympathizing with the Plaintiffs for their unfortunate loss. In FRIMPONG v NYARKO [1998-99] SC GLR 734, where the Supreme Court was confronted with a problem whereby applying the law would have severe consequences on the party, Wiredu JSC (as he then was) said at page 742:

“…. The justice to be dispensed is justice within the law and not one of sympathy. Judicial sympathy, however plausible can never be elevated to become a principle of law. The appellants are out of court, and their case would deservedly be put out of court in accordance with law”

Again taking a cue, in my respectful opinion, no matter how strong a sympathy I may feel for the Plaintiffs; that on its own cannot trump and override the principles of law that I have applied.

[39] I also dismiss the Defendants’ counterclaim because no evidence was led to support the claim. I also make no order as to cost.

[1] David Paciocco and Lee Stuesser, The Law of Evidence in Canada, Irwin Law 4^th ed. At para. 3.1