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IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(GENERAL JURISDICTION DIVISION)
ACCRA - A.D 2019
ADJUIK YAKUBU - (Plaintiff)
PROCREDIT SAVINGS & LOANS CO. LTD - (Defendant)
DATE: 31ST MAY, 2019
SUIT NO: BC/418/2011
JUDGES: HIS LORDSHIP JUSTICE KWEKU T. ACKAAH-BOAFO
LAWYERS:
MR. PETER KWAKU NTI FOR THE PLAINTIFF
MR. RAPHAEL KUMI FOR THE DEFENDANT
JUDGEMENT
Introduction:
(1). This action arises from a motor vehicle collision which took place on December 20, 2010 at ACP Junction, Pokuase. The collision involved a Benz 207 Bus with Registration Number GR 3817 T and owned by Adjuik Yakubu, the Plaintiff herein and a Kia Rhino vehicle with Registration Number AS 8471-10 said to be owned by the Defendant, Pro-Credit Savings and Loan Company Limited. One Akosah Kwadwo of Techiman was operating the Kia Rhino vehicle which was loaded with salt from Accra to Techiman at the time of the collision. The collision resulted in the injury to about eighteen passengers who were on board the Benz 207 Bus. The injured were evacuated to the 37 Military Hospital for treatment.
(2). On January 23, 2011 the driver of the Kia Rhino vehicle, Akosah Kwadwo was charged by the Police and arraigned before the Amasaman District Court. According to the police accident report “he pleaded guilty to all the counts and was convicted and sentenced to pay a fine of GH¢840.00 in default four (4) months I.H.L. Fine paid vide Judicial Service receipt No. 4806067 dated 25/01/2011”.
(3) Consequently, the Plaintiff commenced this action initially in 2011 and amended same on July 6, 2012. Further to leave granted by this Court in 2017 the Plaintiff abandoned some of the initial reliefs and now claims against the Defendant the following judicial reliefs:
i) An order for the Replacement of Plaintiff’s vehicle with an imported unregistered Sprinter Benz as Plaintiff’s vehicle is out of production.
ii) Recovery of 500 days loss of earnings at GH¢40.00 per day while the said vehicle was parked for repairs.
The Pleadings:
(4) The Plaintiff’s case as by the Amended Statement of Claim is that he is the owner of a 207 Commercial Benz Bus with Registration No. 3817 T which provided the Plaintiff with a supplementary income. The Plaintiff further pleaded that the Defendant is a limited liability Company registered under the laws of the Republic of Ghana carrying on the business of banking and the provision of allied banking services. According to the Plaintiff the Defendant is now known as Fidelity Bank located at Ridge in Accra.
(5) The Plaintiff further pleaded that the Defendant admitted ownership of the Kia Rhino truck with registration No. AS 8471-10 which caused the damage to the Plaintiff’s vehicle and injured some passengers who were on board. It is the case of the Plaintiff that the driver of the Kia Vehicle, Akosah Kwadwo “negligently ran into and badly damaged Plaintiff’s 207 Benz Bus with registration No. GR 3817 T, on 20/12/2010 at ACP Junction, Pokuase”. It is the further case of the Plaintiff that in addition to the physical damage to the Plaintiff’s bus, 18 fare paying passengers on the Plaintiff’s vehicle suffered various injuries. Plaintiff further averred that the driver, Akosah Kwadwo was charged and was arraigned before the District Magistrate Court, Amasaman and he pled guilty to the charges, was convicted on his own plea and fined, which fine he paid.
(6) The Plaintiff further pleaded that the “Defendant’s vehicle as a result of the accident has caused loss and damage to Plaintiff Vehicle which has remained at the workshop till date, and has completely rotten down and is beyond salvage”. The Plaintiff provided the particulars of the damage and the loss as per the writ of summons. The Plaintiff further averred that “by a letter dated 22nd March, 2012 the Plaintiff instructed his lawyers to demand from Defendant the cost of repairs and 600 days loss of use which was calculated at GH¢40 per day at the time of filing writ in 2011”.
(7) The Plaintiff further averred that the Defendant is vicariously liable for the damage and loss caused to the Plaintiff’s Vehicle and Plaintiff’s subsequent loss of income from the use of the vehicle. According to the Plaintiff the writ of summons was amended and filed on 6th July, 2012 after discovering the Defendant as owners of the vehicle which damaged his vehicle. The Plaintiff further pleaded that the matter delayed unduly because the Plaintiff believed that the Defendant after filing the entry of appearance did not file the necessary processes timeously. The Plaintiff further pleaded that after many years of delay the Defendant wrote to the Plaintiff a letter on a “without prejudice” basis through their lawyer “seeking settlement out of court dated 3/2/2017; suffice to say the attempt at settlement failed”. The Plaintiff’s further pleading was that “at all material times the long delays were occasioned by the Defendant who instructed his solicitor to serve on Plaintiff a letter proposing settlement; and this dragged the case further, requiring filing for default judgement to no avail”
(8) The Plaintiff again pleaded that the Defendant having “voluntarily admitted ownership of the vehicle under their own signature, on or about 7/2/2012; and same fact earlier stated by a Police Accident Report dated 21/02/2011, the Defendant nevertheless found different ploys to drag out the case, including filing of motions 13/01/2012 that it should be misjoined; and other technicalities that should not be entertained”.
(9) The Plaintiff further pleaded that “Plaintiff realized his great loss if he remained stuck to the estimates or reliefs of the suit in 2011; and sought leave to amend his Witness Statement earlier filed. This was granted and Plaintiff filed a fresh Witness Statement on 14-12-2016 and sought, by the exigencies of the situation, the demand for a replacement vehicle worth in December 2016 GH¢60,000.00 by reason that the original relief for repair was inoperable because the Plaintiff’s vehicle was no longer repairable, having rotten down sitting in one place for 6 years. This was without leave of court, hence the leave sought formally and granted”. The Plaintiff also pleaded that “Plaintiff, in addition to seeking a replacement, would also mitigate the cost to Defendant whereby Plaintiff will maintain the loss of earning at the same rate in 2011 of 40 Ghana Cedis (GH¢40) per day and also reduce the SIX YEARS loss of use to only 600 DAYS”
(10) The Defendant has denied Plaintiff’s Claim. By the Statement of Defence filed on February 3, 2016, the Defendant denies paragraph 3 to 11 of the Plaintiff’s Amended Statement of Claim and pleaded that the Plaintiff shall be put to strict proof of those averments. The Defendant pleaded at paragraph 5 of the Statement of Defence that at all material times the Defendant did not exercise any control over the driver. According to the Defendant “its interest in the vehicle with registration number AS 8417-10 is strictly limited to the amount of money advanced to the user of the vehicle for which the vehicle was used as collateral to secure the facility”.
(11) Based on the above the Defendant pleaded “it is not liable for any tort committed by or under the authority of the driver or client of the Defendant who at all materials times had control and possession of the vehicle. Based on all of the above the Defendant pleaded that Plaintiff is not entitled to her claim.
(12) The Plaintiff filed a reply on May 6, 2016 to respond to the Statement of Defence filed and basically denied all of the Defendant’s averments and repeated his averments and joined issues with the Defendant on its Statement of Defence.
Issues for Trial
(13) At the close of the pleadings the issues contained in the Application for Directions filed by the Plaintiff on June 30, 2016 and the Additional Issues filed by the Defendant on July 12, 2016 and adopted by the court for trial were:-
a) Whether or not Defendant’s vehicle with registration number AS 8471-10 caused damage to Plaintiff’s vehicle?
b) Whether or not the Plaintiff has suffered damage and loss arising from the damage complained above.
c) Whether or not the Plaintiff is entitled to his reliefs in their entirety.
d) Any other issues raised in the pleadings.
The Additional Issues filed were as follows:
1. Whether or not the Defendant is vicariously liable for the torts of the user of the vehicle with registration number AS84417-10.
2. Whether or not the Defendant exercised control and possession over the use of the vehicle with registration number AS84417-10.
Determination of the Issues by the Court
(14) The issues set down for determination above notwithstanding, after hearing the evidence, the issues that have become pertinent are the identity and capacity of the Plaintiff to institute the action and the two additional issues above. In my view the determination of those issues will no doubt effectively determine the dispute between the parties. This is because based on the evidence heard I note that the Defendant did not contest the circumstances of the accident and the damage to the Plaintiff’s vehicle, as well as the allegations of negligence of the driver Akosa Kwadwo because it took the position that the driver was not its employee or agent and therefore not liable for his alleged negligence.
(15) 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.
(16) One of such decisions 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”.
(17) By the above statement of the law Aikins JSC reiterated the position of Kpegah JA. (as he then was) in ZABRAMA V. SEGBEDZI. [1991] 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 [2010] 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).”
The Plaintiff’s Evidence:
(18) The Plaintiff’s case consisted of his testimony in court and the documentary evidence he submitted in support of his claim, marked in the record as Exhibits “A” to “D”. Mr. Yakubu testified based on the Amended Witness Statement filed on 14-12-2016 and adopted at trial that he is the owner of the 207 Commercial Benz Bus with registration number GR 3817 T. He testified that his vehicle was destroyed by the Defendant’s Kia Rhino Truck with registration number AS 8471-10 on December 20, 2010 which was negligently driven into his 207 Benz vehicle at ACP Junction at Pokuase. According to the Plaintiff the Defendant admitted its ownership of the Kia Rhino Truck by a letter dated February 7, 2012. Mr. Yakubu tendered as Exhibit “A” a copy of the said letter.
(19) Mr. Yakubu further testified that the Defendant’s Kia vehicle’s driver was one Akosah Kwadwo as per the Police Accident Report confirms. Mr. Yakubu further testified that the police who investigated the incident charged the driver. According to him the driver was prosecuted and convicted on his own plea and sentenced to a fine of GH¢840 or in default four (4) months I.H.L. A copy of the police accident report was tendered at trial as Exhibit “B”.
(20) According to the Plaintiff by a letter dated 22nd March, 2012, “I instructed my lawyers to demand form Defendant the cost of repairs and only 60 days’ loss of use which was calculated at GH¢40 per day, amounting in all to GH¢9,269.00” A copy of the letter was tendered as Exhibit “C” at trial. According to the Plaintiff the Defendant has resisted all his requests to have the matter settled even though their former Counsel, Lawyer Acheampong on February 4, 2013 served on his lawyer an offer to settle. A copy of that letter was tendered as Exhibit “D” at trial. According to the Plaintiff despite being happy at the prospects of settling the matter nothing came out of it and he later he found out that “the Defendant’s gesture was another act of insincerity to deepen his woes” and also because Mr. Acheampong ceased to work for the Defendant.
(21) Mr. Yakubu further testified that “on the whole the Defendant has demonstrated a lack of humanity in dealing with my issue and that it is only the Honourable Court that can, and must come to my rescue and save me from the suffering created by the Defendant to impoverish me”. He therefore prayed the Court to grant his reliefs.
The Defendant’s Evidence:
(22) The Defendant’s evidence at trial was given by one Kingsley Appiah, a Senior Legal Assistant of Fidelity Bank Ghana Limited which has now acquired the Defendant Company. Mr. Appiah testified that because the instant suit was commenced in the year 2011, all staff of the Defendant who had personal knowledge of the events averred in the pleadings have resigned and therefore he was called upon as the Senior Legal Assistant in charge of vehicle documentations to testify on behalf of the Defendant.
(23) The Defendant’s witness testified that the Defendant granted a loan facility of GH¢28,000 to one Samuel Adjei and he used same to purchase a Kia Rhino truck with registration number AS 8471-10. According to Mr. Adjei based on their agreement the truck was used as collateral security for the loan. Mr. Appiah further testified and conceded that the said truck was being driven by one Akosa Kwadwo at the time of the accident, however he said ”the said Akosa Kwadwo has never been a staff, agent or assign of the Defendant” but rather was the agent of Samuel Adjei, the borrower at all material times”.
(24) Mr. Adjei further testified and conceded that by a letter dated 25th January, 2012, the Plaintiff’s counsel wrote to Defendant requesting confirmation of ownership of the Kia Rhino with registration number AS 8471-10 whereupon Defendant’s Legal Officers, by a letter dated 7th February, 2012 confirmed ownership of the said vehicle.
(25) Mr. Appiah further testified that that at all material times, Akosa Kwadwo was the agent of Samuel Adjei and was operating the vehicle for and on behalf of Samuel Adjei. Further, the witness testified that the “Defendant does not know the said Akosa Kwadwo, nor has the said Akosa Kwadwo been or held out to be an employee, agent, assign or representative of the Defendant. He also said the Defendant had no say in the engagement of Akosa Kwadwo as driver of the vehicle. Defendant did not exercise any control and possession whatsoever over the said vehicle. As a result, according to the witness the “Defendant’s interest in the said vehicle is only to secure their financial interest by ensuring that its name was on the vehicle documents”.
(26) Finally, Mr. Appiah testified that “any loss which may have been suffered by Plaintiff, while it is unfortunate, it is not the fault of the Defendant or any of its agents, assigns, representatives or persons claiming through the Defendant”. Mr. Appiah said the “Plaintiff sat unconcerned while Akosa Kwadwo and Samuel Adjei removed themselves from this suit and out of ill-will joined Defendant to the suit because Defendant is a Bank and stands in a better financial position compared with Akosa Kwadwo and Samuel Adjei.” He said this whole suit is “actuated by bad faith and it is an obvious ploy to visit the Plaintiff’s frustrations on the Defendant”. He therefore urged the Court to dismiss the Plaintiff’s claim.
The issue about the Identity and Capacity of the Plaintiff:
(27) In the course of the trial one thorny issue that emerged was the identity of the Plaintiff. The Plaintiff who sued is called “Adjuik Yakubu”. The police accident report which was tendered as Exhibit “B” and which the Plaintiff relies on to identify himself as the owner of the 207 Benz Bus states the owner is “Adjei Yakubu”. The same name also appears on the vehicle registration certificate. In the course of the trial Counsel for the Defendant raised an objection to the identity of the Plaintiff and his capacity to institute the action on the grounds that the Plaintiff has failed to explain with cogent evidence why the difference in the name of “Adjuik Yakubu” and “Adjei Yakubu”. The Plaintiff said it was only a mistake on the part of the police officer who prepared the police accident report.
(28) In an effort to explain the discrepancy in the name, the Plaintiff’s Counsel subpoenaed one Inspector Bernette Ayertey Tetteh, the police officer who prepared the police accident report. The Police Office testified as a Court Witness (CW1) and said he was an inspector with the Ghana Police Service attached to the MTTD Unit at Amasaman. He stated that on 20th December 2010 an accident case was reported and it was referred to him for investigation. He also said he undertook the investigation and took statements from the drivers of the vehicles. According to him in the course of the investigation he realized that the insurance certificate bore the name of Adjuik Yakubu but the DVLA registration was Adjei Yakubu. He identified the police report as the one he authored.
(29) Under cross-examination by learned counsel for Plaintiff, CW1 stated that in the preparation of the police report, he relied on the drivers’ licenses insurance and road worthy certificates. He noted that the insurance certificate bore the name Adjuik Yakubu whiles the road worthy certificate bore the name Adjei Yakubu. Upon seeing this discrepancy, CW1 stated that he requested the Plaintiff to furnish him with documents to confirm his ownership. CW1 also identified two DVLA Form C documents. One issued in 2010 and one issued in 2011 with the names Adjei Yakubu and Adjuik Yakubu respectively. Based on the documents, he explained that the name Adjei Yakubu was a typographical mistake. He further stated that upon examination and inspection by DVLA, the 2010 pink Form C was the correct Form C and that it bore the real name of the Plaintiff as Adjuik Yakubu.
(30) Under cross examination by the Defendant’s counsel the following evidence was elicited
“Q. You have stated before this Honourable Court that Exhibit “A” of the subpoena which is the police accident report has the name Adjei K. Yakubu, am I correct?
A. Yes, my lord
Q. You have also stated that this is a typing error before this honourable Court?
A. Yes, my lord
Q. Where do you suppose this error emanated from?
A. My Lord from the typing.
Q. Take a look at Exhibit “D” attached to the subpoena, which is the blue DVLA vehicle registration certificate and tell the court the name of the owner of the vehicle as stated therein?
A. Adjei Yakubu.
Q. If you could state it as exactly written, please?
A. My Lord that one is Adjei Yakubu.
Q. I am suggesting to you that the name written here is Mr. Adjei K. Yakubu?
A. Yes, my Lord.
Q. You would agree with me that this is exactly the same name written on Exhibit “A”, i.e. the police report.
A. Yes my Lord.
Q. I am therefore suggesting to you that the source of the error patent on the face of the police report is Exhibit “D”.
A. Exhibit “D” bearing Adjei Yakubu whiles the police report bearing Adjei K. Yakubu.
Q. Take a look at Exhibit “A” one more time and indicate to this Court anything on the face of this report which indicate that you are the author of this report.
A. Yes, my Lord.
Q. You made this statement based on the comparison you made between two vehicle registration certificates issued by the DVLA, am I correct?
A. Yes my Lord.
Q. You had stated before this Honourable Court that the proper owner is Adjuik Yakubu.
A. Yes, my Lord.
Q. Are you the author of these two vehicle registration certificates, i.e. Exhibits “C” and “D”?
A. My Lord I am not the author but the Form C and the change of ownership proof that Adjuik Yakubu is the owner of the vehicle.
Q. Does Exhibit “D” also not emanates for the DVLA?
A. Exhibit “D” has no record from the DVLA but Form C and the change of ownership.
Q. I am suggesting to you that both Exhibits “C” and “D” emanate from the DVLA.
A. Yes, my Lord
Q. You have also stated that you are not an official of the DVLA, is that correct?
A. Yes, my Lord
Q. I am suggesting to you that it does not lie in your mouth to tell this Honourable Court that Exhibit “C” bears the correct name of the Plaintiff as opposed to Exhibit “D”
A. My Lord Exhibit “C” has a record from DVLA while Exhibit “D” has no record from DVLA.
Q. Can you reveal the identities of the personnel of DVLA with whom you carried your checks?
A. My Lord, I can.
Q. I am suggesting to you that everything you have told this Honourable Court is not within you purview as an MTTD Officer but rather within the purview of the DVLA.
A. My Lord we have been mandated to cross check anything that we are in doubt of with the DVLA.
Q. Finally, I am suggesting to you that you are not the proper person to speak to any discrepancies on the face of document emanating from the DVLA.
A. My Lord, as an Inspector of Police, I have the mandate to verify anything whether fake or original form the DVLA.
Q. I am suggesting to you that you cannot determine between exhibit “C” and “D” which one is genuine and which one is fake.
A. My Lord I can, because even driving license when we suspect it is fake, we write to the DVLA”.
(31) Further to the above exchange, Counsel in his written legal submission to the Court stated that “The Plaintiff’s identity and capacity have been called into question because the Plaintiff himself has tendered vehicle registration certificates (Exhibits C and D) before the Honourable Court bearing two different names i.e. Adjei Yakubu and Adjuik Yakubu, each purporting to emanate from the Driver and Vehicle Licensing Authority (DVLA). These are the documents which were tendered to attempt to prove Plaintiff’s capacity as owner of the vehicle against whom an alleged tort has been committed. Plaintiff’s capacity to institute the action against the Defendant is premised on his identity as the owner of the vehicle in respect of which the alleged tort was committed”.
(32) Counsel continued after analysing the evidence of Police Officer Tetteh that “It is our humble opinion that the proper persons to testify to this inconsistency would be the DVLA as both Exhibits C and D emanate from DVLA and are known to be in the custody of DVLA. CW1 offered no explanation as to the inconsistency. Plaintiff and his Counsel also offered nothing by way of evidence to prove the identity and capacity of the Plaintiff as owner of the vehicle involved in the alleged tort. It is our opinion that having alleged to be the bona fide owner of the vehicle, the burden of proof was on Plaintiff to prove his identity and capacity as owner of the vehicle involved in the alleged tort”.
(33) Having looked at the entire evidence together with all of the documents filed by the parties I am of the respectful opinion that learned Counsel for the Defendant’s submission is anchored on legal technicality and not the reality of the evidence. Without doubt the settled rule of law is that the capacity of a party to mount an action may be challenged at any time, and even on appeal. The case, YORKWA v DUAH (1992-93) GBR 278 C/A illustrates the principle that where a person’s capacity to initiate an action was in issue it is no answer to give him a hearing on its merits even if he had a cast-iron case. See also the Supreme Court case of FOSUA & ADU-POKU v. DUFIE (Deceased) & ADU-POKU MENSAH [2009] SCGLR 310 where His Lordship Dotse JSC opined that “Want of capacity is a point of law which, if raised, goes to the root of the action”.
(34) Based on the facts of this case, I am of the view that the explanation offered by the Police Officer is plausible, reasonable and acceptable. From the facts the Defendant cannot point to any known and existing person called “Adjei Yakubu” who is connected to the case at bar except the Plaintiff herein. While indeed, an officer from the DVLA’s appearance in Court to speak to the issue may have been the best option, in my opinion their non-appearance is also not fatal based on the facts. I accept as proper the testimony of Inspector Bernard Ayertey Tetteh on the issue. I also accept as a fact that the actions taken by him as part of his official duty are supportable in law as same is covered under Section 37 of the Evidence Act. Based on the law therefore, I am satisfied that the discrepancy in the name of the Plaintiff as appears on Exhibits “C” and “D” was explained away by CW1 as a clear case of a typographical error and I therefore hold that the Plaintiff’s capacity has been established based on the evidence and the law. The Defendant’s objection is overruled.
(35) As stated above the next important issue (s) to consider are the additional issues, which are:
1. Whether or not the Defendant is vicariously liable for the torts of the user of the vehicle with registration number AS84417-10.
2. Whether or not the Defendant exercised control and possession over the use of the vehicle with registration number AS84417-10.
(36) Black’s Law dictionary defines vicarious liability as liability that a supervisory party (such an employer) bears for the actionable conduct of a subordinate or associate (such as an employee) based on the relationship between the two parties. This liability is based on the principle of “respondeat superior.” Thus employers are vicariously liable for the negligent acts or omissions by their employees in the course of their employment. The principle was duly explained by Lord Nicholls in the case of Dubai Aluminium Co Ltd v Salaam (2002) 3 WLR 1913. He opined that, “The underlying legal policy is based on the recognition that carrying on a business enterprise necessarily involves risk to others. It involves the risk that others will be harmed by wrongful acts committed by the agents through whom the business is carried on. When those risks ripen into loss, it is just that the business should be responsible for compensating the person who has been wronged.” In establishing vicarious liability, three primary requirements must be met. There must be a relationship of control; a tortious act and the act must be done in the course of employment.
(37) The law is that for an employer to be vicariously liable, there must be a requisite relationship between the employer and the tortfeasor. Thus the tortfeasor must be an employee of the employer. See .Bramwell LJ in the case of YEWEN v NOAKES (1880) 6 QBD 530 and his elucidation of the law as to who an employee is.
(38) In this case as stated above the Plaintiff has sued the Defendant on the sole ground that it is the owner of the vehicle that damaged his Benz 209 bus and therefore liable for the damage suffered as a result of the accident. The evidence shows that the Plaintiff initially brought the action against the driver and the company which insured the vehicle but discontinued the action and then instituted the present action. It is pertinent to re-state and reiterate what happened when the Plaintiff was cross-examined by the Defendant’s Counsel on March 19, 2018:
“Q: Do you know one Star Assurance Company Limited?
A. Yes my Lord.
Q. In this same case, on the 13th of January, 2012 you filed an application to join the Defendant in this suit, is that not so?
A. Yes my Lord.
Q. Do you recall that you sued Star Assurance Company Limited and Akosah Kwodwo whom you identified as the driver of the vehicle.
A. Yes my Lord.
Q. What became of the said Akosah Kwadwo, where is he now?
A. My Lord I do not know where he is.
Q. Per Exhibit “B” attached to your own Witness statement, i.e. the police report, Star Assurance is listed as the insurers of the vehicle in question.
A. Yes my Lord.
Q. So you would agree with me that Star Assurance Company should have been properly made the Defendant in this matter?
A. No, my Lord.
Q. Is it the case that you discontinued against Star Assurance and Akosah Kwadwo?
A. Yes, my Lord it is true, I discontinued for certain reasons.
Q. Kindly tell this Court, what your reason was for discontinuing against the insurer of this vehicle?
A. My Lord when the car was involved in an accident I did not know that it is the property of Procredit, so I sued the driver and later he told me that he is just a driver and he is not the owner of the vehicle. He told me that the vehicle has been insured with Star Assurance so I should go to their Circle Office, the office tossed me about until they said that the vehicle belongs to somebody else and so I should sue the owner. We sued Star Assurance and they came to Court. When Star assurance came to Court, they said Procredit is the owner of the vehicle and therefore until we sue Procredit, they cannot pay any money to me.
Q. Is it your case that the driver (Akosah Kwadwo) you spoke with was an agent of Procredit?
A. My Lord I do not know.
Q. I am suggesting to you that the said Akosah Kwadwo was never an agent of the Defendant.
A. My Lord the representative for Procredit testified in Court that the vehicle was purchased for Akosah Kwadwo to be used as ‘work and pay’ and the Court asked in whose name was the vehicle registered and he said it was Procredit who registered the vehicle in their name.
Q. So, by ‘work and pay’, you will agree with me that the Defendant financed the said vehicle?
A. My Lord that statement was made by a representative of Procredit in Court and the Judge said nobody asked them to go and engage themselves in that business and that if they financed the purchase and the vehicle is registered in their name, then they are the right people to be sued as owners.
Q. Is it your case that the Defendant retained control over the said vehicle?
A. Yes my Lord, it is their property.
Q. Is it your case that the Defendant had any say in the engagement of Akosah Kwadwo as
the driver of the said vehicle?
A. Yes, they engaged the said Akosah Kwadwo.
Q. You have said in one breath that Procredit purchased the vehicle for Akosah on a ‘work and pay’ basis, is that not correct?
A. Yes my Lord.
Q. Thereafter, are you telling this Court that Procredit engaged the said Akosah as a driver?
A. Yes, my Lord.
Q. I am suggesting to you that Procredit merely financed the said vehicle and at no time did it engage Akosah as the driver.
A. My Lord after the accident, the police investigation report indicated Procredit to be the registered owner of the vehicle and that is why I said what I said earlier.
Q. I am suggesting to you further that you discontinued against Star Assurance and proceeded against Procredit simply to enrich yourself.
A. No, my Lord.
Q. I am suggesting to you again that you joined Procredit and discontinued against Akosah Kwadwo merely because Procredit was the registered name of the vehicle document and not because Procredit exercised any control over the driver.
A. My Lord the name that was used to register the vehicle is what I proceeded against because my vehicle is destroyed.
Q. When your vehicle is involved in an accident with another vehicle, do you not proceed against the insurer?
A. No my Lord.
Q. I am suggesting to you that your action against the Defendant is brought out of ill-will and solely to enrich yourself.
A. My Lord that is not so”.
(39) From the above exchange it is clear that even though the Plaintiff prevaricated and indeed contradicted himself on the issue whether the said Akosah Kwadwo was the Defendant’s agent he nevertheless said the Defendant is liable for the acts of the driver because it is the owner of the vehicle. His counsel in his submission reiterated the same point. Before I consider Counsel’s submission, it is also important to state that from the record the Plaintiff’s action is anchored in Exhibit “A” and nothing more. I produce here below the said letter. It states:
“ATTENTION: PETER KWAKU NTI ESQ
RE: OWNERSHIP OF KIA RHINO TRUCK REG. NO. AS 8471-10 INSURED – STAR ASSURANCE CO.LTD
POLICY NO. 00863356 ISSUED ON 09/12/2010 TO EXPIRE ON 08/12/2011
We refer to your letter dated 25th January 2012 with the above heading. We hereby confirm ownership of the above mentioned vehicle.
However, we would be grateful if you could give us more information regarding your inquiry.
We await your response.
Yours faithfully
Signed Signed
SOPHIA ADARKWA (MRS) ELIZABETH BOAKYE
SENIOR LEGAL OFFICER LEGAL OFFICER”
(40) As stated earlier, the above letter is the foundational basis for the Plaintiff’s claim. Relying on the above letter as the basis of the liability, the Plaintiff says having acknowledged the ownership of the vehicle the Defendant Company is the employer of Akosah Kwadwo, the driver of the Kia Rhino Truck with registration number AS 8471- 10 which caused damage to the Plaintiff’s vehicle. The Plaintiff also relies on the fact that the driver pleaded guilty at the District Court to say the Defendant is liable for the acts of the driver.
(41) On the other hand, the Defendant’s witness Kinglsey Adjei, Senior Legal Assistant testified that his outfit granted a loan facility of GH¢ 28,000 to one Samuel Adjei and used a Kia Rhino Truck as collateral security for the vehicle. He further testified that the driver, Akosah Kwadwo has never been a staff, agent or assign of the Defendant. He stated that Akosah Kwadwo was the agent of Samuel Adjei at all material times. Mr. Adjei conceded that by Exhibit “A” the Defendant’s acknowledged ownership of the vehicle but also said at all material times, the control and use of the vehicle was vested in Samuel Adjei in whose name and for whose benefit the loan facility was granted and for whose benefit the vehicle was being driven. That at all material times Akosah Kwadwo was the agent of Samuel Adjei and not the Defendant herein which does not know the said Akosah Kwadwo, nor has held him up to be its employee, agent, assign or representative.
(42) Mr. Nti in his submission cited the case of KOBINA AND ANOTHER v. BADU [1968] GLR 1150-1156, a decision of Aboagye J, sitting at the High Court, Sekondi to state that where a Plaintiff in an action for negligence proved that damage had been caused by the Defendant’s motor car the fact of ownership of the motor car was, prima facie evidence that the motor car at the material time, was driven by the owner or his agent or servant in the course of his employment”. Counsel also cited other cases to say that the Defendant is vicariously liable.
(43) Having critically reviewed all of the evidence I am of the view that the Plaintiff’s action fails based on the following reasons stated below. First and foremost, I am of the respectful view that Counsel for the Plaintiff has misconceived the law as articulated by Aboagye J. Respectfully, I do not agree with Counsel because unlike the Kobina v Badu case above, the factual situation here does not include an admission of liability by the driver Akosah Kwadwo or a finding of this Court that he is liable for the accident due to his carelessness and/or negligence. With respect, the Plaintiff has erroneously relied on the conviction of the driver at the District Court to say the Defendant is liable. That has never been the law and the practice. The practice has always been that the driver ought to be a party to such a suit.
(44) As the Court of Appeal held in the case of ANSAH v. BUSANGA [1976] 2 GLR 488 through Anin, J.A at holding 2 “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”. See also the case of YAMUSAH v. MAHAMA AND OTHER [1991] 1 GLR 549. In this case there is no evidence that Akosah Kwadwo was the employee of the Defendant and/or its agent as the Plaintiff himself prevaricated on the issue. He initially said he had no proof that he was an employee of the Defendant but later said he was the Defendant’s agent. Also, there is no evidence that even if Akosah Kwadwo was the agent Defendant he had the express authority of the Defendant for the plea of guilt at the District Court.
(45) The law as I understand it is that in a matter such as one at bar, first and foremost there must be evidence to show that the driver was the employee of the owner and he was operating the vehicle in the course of his employment. Also, my read and review of all the cases cited by Counsel and my own research educates me that in cases such as the one at bar, there must be an establishment of liability against the driver before same can be attributed to the owner. Whilst considering this matter and reading the pages of the submissions, I was tempted to ask myself why the Plaintiff chose to discontinue against the driver of the vehicle but to proceed against the Defendant herein only? With all due deference to the Plaintiff and Counsel, without a finding of careless driving and negligence of the driver there cannot be a finding of vicarious liability of the owner based on the law.
(46) In this case I am of the opinion that the Defendant rebutted the presumption that Akosah Kwadwo was not its agent or employee based on the positive unimpeached evidence of the Defendant’s witness. It was therefore the Plaintiff’s onus to show that Akosah Kwadwo was indeed the agent of the Defendant. I am of the respectful view that the Plaintiff has failed to establish that there is a requisite relationship between Akosah Kwadwo, the driver of the Kia Rhino Truck and the Defendant. Therefore the Defendant cannot be said to be vicariously liable for the act of the driver who was not its employee. To my mind, mere ownership of the vehicle is not enough evidence to prove the Defendant’s liability in law of the alleged careless driving and negligence of the driver.
Conclusion & Disposition:
(47) From the above discourse therefore, I hold that the Defendant is not vicariously liable for the acts of Akosa Kwadwo the driver as the only evidence before the Court and which I accept is that he was not an employee or agent of the Defendant. Also, there is no evidence that the Defendant exercised control and possession of the KIA Rhino vehicle. As I have extensively discussed above, it was important for the Plaintiff to maintain the action against the driver, Akosah Kwadwo, Samuel Adjei who contracted the loan to purchase the vehicle, the Insurance Company and then the Defendant herein. The evidence before me amply shows that the Defendant cannot be held vicariously liable for the acts of the driver, Akosah Kwadwo just because its name appears on the DVLA documents as the owner. To my mind the Defendant successfully explained the circumstances of its ownership and I accept same as reasonable. Accordingly, the Plaintiff’s case is DISMISSED.
Finally, I consider it necessary to say that I have not come to this conclusion with any relish because of the peculiar facts of this case undoubtedly makes me have some sympathy for the Plaintiff. However whilst sympathizing with the Plaintiff for his plight because he has lost his source of income I can only re-echo the wise words of the late Chief Justice of this Republic, Justice Wiredu when he stated in OWUSU V. ASANTE (1992-93) 2GBR 462 @ 495, Wiredu that “Judicial sympathy, however plausible cannot be elevated into a principle of law.” Taking a cue, in my respectful opinion, no matter how strong a sympathy I may feel for the Plaintiff based on the circumstances of the case, that on its own cannot trump and override the fact that the law ought to be applied.
Based on the facts and the circumstances I shall exercise my discretion not to award costs against the Plaintiff.