• IN THE SUPERIOR COURT OF JUDICATURE
  IN THE HIGH COURT (GENERAL JURISDICTION DIVISION)
  ACCRA - A.D 2019
  

ANGELA NEEQUAYE (MRS) - (Plaintiff)

vs.

UNIVERSAL MOTORS LIMITED - (Defendant)

JUDGEMENT

---

Introduction/Overview:

(1) The Plaintiff, Mrs. Angela Neequaye, purchased a brand new VW Touareg vehicle from the Defendant Company in 2011 at the price of $68,000.00. According to Mrs. Neequaye the vehicle was in a very good condition since it was regularly maintained at the Defendant’s shop. It is the case of the Plaintiff that on or about 10th June 2015, her husband, Robinson Oko Neequaye on her instruction took the vehicle to the Defendant’s workshop in Accra for its regular servicing and a check on a rattling noise in the exhaust. The Plaintiff contends that when the husband went back to collect the vehicle he was informed that the vehicle could not be started and as a result the engine had to be dropped. The Plaintiff contends that the Defendant made a demand of Twenty Three Thousand, Three Hundred and Twenty One Ghana Cedis (GH₵23,321) and Twelve Thousand Ghana Cedis (GH₵12,000) was paid for the purchase of parts to fix the engine. According to the Plaintiff the said amount of GH₵12,000 was reluctantly paid to the Defendant but the problem could not be fixed but rather a further demand of GH₵38,657.55 for further repairs was made by the Defendant. In this suit the Plaintiff says the Defendant was negligent in the manner it handled the vehicle. Mrs. Neequaye is claiming damages for negligence and recovery of the replacement value of the vehicle and for loss of use.

 

(2) Universal Motors Limited takes the position that it was not negligent. According to the Defendant the problem for which the Plaintiff brought her vehicle to the workshop was rather rattling noise in the engine which was giving difficulties to the Plaintiff in starting the vehicle every morning and not rattling noise in the exhaust. The Defendant takes the position that as per the job card signed by Mr. Oko Neequaye, the Plaintiff agreed to the nature of the repair the Defendant was asked to undertake and same was expressly stated as “check and rectify rattling noise in the engine when starting in the morning”. According to the Defendant it informed the Plaintiff that to be able to check what the problem with the engine was, they had to pull down the engine to assess the problem and estimate the cost of fixing same. To the Defendant therefore it sought the Plaintiff’s consent to pull the engine down and she agreed but the Plaintiff failed to make full payment for fixing the engine but is rather blaming the Defendant for negligently making the engine inoperable.

 

(3) The Defendant Company counterclaimed for the amount of GH₵11,321.83 being the balance from the initial estimates of works already done in relation to pulling down the engine. It also further counterclaimed for the payment of GH₵38,657.55 for the work on the engine to be completed for the Plaintiff or in the alternative, an order directed at the Plaintiff to move her vehicle from the premises of the Defendant and carry same along with the dropped engine in the event that the Plaintiff elects not to make money available to be carried out on the engine.

 

The Issues:

(4) At the close of the pleadings the issues set down for the determination by the Court were:

1. Whether or not the Defendant was negligent in handling the Plaintiff’s vehicle No. GS 717-11.

2. Whether or not the Defendant’s negligence has rendered the Plaintiff’s vehicle uneconomic to use.

3. Whether or not the Plaintiff has suffered loss of use of the vehicle in dispute and damage as a result of the Defendant’s negligence.

4.   Whether or not the Defendant is entitled to its counterclaim.

5.   Any other issues arising from the pleadings.

 

The Defendant filed four (4) Additional Issues:

              i.        Whether or not the Plaintiff’s vehicle had an engine problem which was one of the reasons why the Plaintiff took her vehicle to the Defendant for repairs.

            ii.        Whether or not the problem of the Plaintiff’s car engine not starting was as a result of negligence on the part of the Defendant.

           iii.        Whether or not it was the Plaintiff who authorized the Defendant to pull down her vehicle’s engine for the engine problem to be assessed and worked on.

           iv.        Whether or not the continuous stay of the Plaintiff’s car on the Defendant’s premises is due to the fault of the Defendant or due to the inability of the Plaintiff to pay for the repairs to be carried out on her vehicle.

 

Determination of Issues by Court:

(5) I shall determine the germane issues arising from the pleadings in order to determine the dispute between the parties within the issues set down because with respect, though several issues have been raised by the parties for determination by the Court but with respect most of them are collateral and peripheral and not relevant. In the opinion of this court, there are only about three critical issues which are very central to the determination of the controversy between the parties herein. Indeed it is the policy of the law that only those issues which are germane to the determination of a case must be decided by the court and not irrelevant issues although the parties might have led evidence on them. See the case of DOMFE v ADU (1984-86) 1 GLR 653.

 

(6) Applying the above stated principle to the instant case, my view is that the three most important/germane issues for determination in this case which can be gathered from the pleadings and the evidence offered in this case are can be restated as follows:

a.    Whether or not the Defendant was negligent in handling the Plaintiff’s vehicle No.GS 717-11?

b.    Whether or not the Plaintiff ought to pay for the continuous stay of the car on the Defendant’s premises and whether or not the Plaintiff is to pay for the repairs carried out on the vehicle; and

c.     Whether or the Defendant is entitled to its counterclaim?

I believe the resolution of these issue will effectively resolve all the other issues.

 

(7) It is noted that in civil cases, the general rule is that the party who in his pleadings or writ raises issues essential to the success of his case assumes the burden of proof. The same principle applies to a Defendant who makes a counterclaim. It is trite law that for every case there is a burden of proof to be discharged and the party who bears the burden will be determined by the nature and circumstances of the case; See Sections 10 – 17 of the Evidence Act 1976 (NRCD 323). I note that there is no paucity of case law interpreting the provisions of NRCD 323. In ABABIO v AKWASI 111 [1994-95] Ghana Bar Report, Part 11, 74 the court stated that a party whose pleadings raise an issue essential to the success of the case assumes the burden of proving such issue. See also RE ASHALLEY BOTWE LANDS: ADJETEY AGBOSU & ORS v KOTEY & ORS [2003-04] SCGLR 420 which further elucidate the burden of proof as statutorily provided.

 

(8) Specifically, Section 10 of the Evidence Act, 1975 (NRCD 323) makes provision for the Standard of proof in civil cases as follows:

“S.10 (1) For the purposes of this Decree, the burden of persuasion means the obligation of a party to establish a requisite degree of belief concerning a fact in the mind of the tribunal of fact or the court.

(2) The burden of persuasion may require a party to raise reasonable doubt concerning the existence or non-existence of a fact or that he establishes the existence or non-existence of a fact by a preponderance of the probabilities or proof beyond reasonable doubt.”

 

(9) The section 12 of the Evidence Act re-emphasizes the burden of proof by the preponderance of probabilities in civil cases. It provides:

“12. (1) Except as otherwise provided by law, the burden of persuasion requires proof by preponderance of probabilities.

(2) “Preponderance of probabilities” means that degree of certainty of belief in the mind of the tribunal of fact or the court by which it is convinced that the existence of a fact is more probable than its non-existence.”

 

(10) The law as stated above is not different from other jurisdictions. I note that the legal principle above has been re-stated in the Bench Book for United States District Court Judges, published by the Federal Judicial Centre (March 2000 ed.) as follows:

“The plaintiff has the burden of proving his/her case by what is called preponderance of the evidence. That means the plaintiff has to produce evidence which, considered in the light of all the facts, leads you to believe that what the plaintiff claims is more likely to be true than not. To put it differently, if you were to put the plaintiffs and the defendant’s evidence on opposite sides of the scale, the plaintiff would have to make the scales tip somewhat on his/her side. If the plaintiff fails to meet this burden, the verdict must be for the defendant.”

It is generally accepted that in a civil suit only one legal rule applies and that is that the evidence must be scrutinized with care by the trial judge in deciding whether it is more likely than not that an alleged event has occurred and therefore the Plaintiff is entitled to judgment and or the suit should be dismissed. In this case, how did the Plaintiff prove the reliefs she claims as per the Writ of Summons?

 

The Court’s Evaluation & Analysis of the Evidence:

I proceed to determine the issues - Issues 1 – In my view the reframed issue one is a question of mixed fact and law because the legal issue of negligence ought to be determined within the context of the facts presented.

 

(11) Giving evidence on oath the Plaintiff’s Lawful Attorney and husband, Mr. Robinson Okoe Neequaye testified for the Plaintiff. A copy of the Power of Attorney was tendered as Exhibit “A”. He testified that on or about 10th June, 2015 he drove the Plaintiff’s vehicle which was then road worthy to the Defendant’s workshop in Accra for its routine servicing and a check on a rattling noise in the engine. Mr. Neequaye said when he later went to take the vehicle from the Defendant’s workshop, he was informed that the vehicle could not be started and as a result the engine had to be dropped.

 

(12) Not being satisfied with the turn of events, Mr. Neequaye testified that the Plaintiff caused her Solicitor to write a letter to the Defendant to complain that “her vehicle was driven to the workshop without any problem related to starting the engine, which required the engine being dropped”. A copy of the Solicitor’s letter was tendered as Exhibit “B’. According to the witness, the Solicitor wrote to the Defendant that its workers had been negligent in the handling of the vehicle and demanded the vehicle be released in a road worthy condition but the Defendant Could not do so.

 

(13) The Plaintiff’s Attorney further testified that after detaining the vehicle for several months the Defendant informed the Plaintiff that the engine could not start and made a demand for the payment of GH¢12,000.00 by the Plaintiff to enable it purchase spare parts to fix it. Mr. Neequaye said the “Plaintiff who had no choice reluctantly paid the GH¢12,000.00 demanded yet the Defendant was unable to fix the vehicle. Thereafter the Defendant further demanded that the Plaintiff paid it an additional GH¢38,657.55 to enable it fix the vehicle but the Plaintiff caused her lawyer to write to the Defendant to indicate that the further demand was unacceptable”. A copy of the letter was tendered as Exhibit C.

 

(14) Mr. Okoe Neequaye further testified that after the Defendant had dropped the engine of the vehicle; it kept saying that it could not start the engine even though as stated earlier the vehicle was road worthy when it was taken to the workshop. According to Mr. Neequaye the Plaintiff’s position is that the inability of the Defendant to start the engine several weeks after it had dropped it was as a result of its negligence in handling the vehicle. To the Plaintiff therefore the Defendant failed to exercise due care in handling the vehicle and as a result the vehicle has been rendered unroad worthy for several months.

 

(15) It is the case of the Plaintiff that because she was deprived the use of the vehicle she has suffered damages and the Defendant ought to pay for same. The Plaintiff contends that she resorted to the use of taxis daily to and from work for 5 days per week (that is, from Mondays-Fridays) from 11^th June, 2015 to Friday 27^th November, 2015 a total of 127 days (excluding Saturdays and Sundays) which works up to a total of GH¢5,080.00 in travel and transport expenses. She also contends that the amount has increased since the filing of the writ of summons. It is also her case that apart from taxis to and from work, she has also spent monies on taxis during the weekends to social events. She therefore prayed the Court to grant her reliefs.

 

(16) The Defendant on the other hand called Emmanuel Adjei, a Service Advisor in the Defendant Company as a witness. He testified and confirmed that the Plaintiff, through her husband, brought the vehicle for the following services to be carried out:

              i.        Carry out 57731 KM servicing;

             ii.        Carry out Combo service;

            iii.        Carry out A/C treatment;

           iv.        Check and estimate tail gate not locking;

             v.        Check and estimating rattling noise in the engine when starting in the morning.

A copy of the job history was tendered as Exhibit “A” at trial.

 

(17) Mr. Adjei further testified that an initial estimate of GH¢23,321.83 was made to the Plaintiff and she made an initial deposit of GH¢12,000.00 for the repair of the vehicle. According to him the Plaintiff had to pay the remaining GH¢11,321.83 of the initial estimate to make up for the full amount of the estimate after which the work was to be carried out on the vehicle. Mr. Adjei further testified that at “the time of this statement, the Plaintiff had not paid up the said indebtedness”. A copy of the pro forma invoice was tendered at trial as Exhibit 2.

 

(18) The Defendant’s witness also testified that in checking the rattling noise in the engine, they prescribed to the Plaintiff’s husband that the engine had to be pulled down and worked on and the request was granted by the “Plaintiff’s husband, acting on the instructions of the Plaintiff”.

 

(19) Mr. Adjei’s further evidence was that the demand for GH¢38,657.55 was as result of the second estimate which was discovered after fixing the parts and conducting the repairs for the first estimate. According to him “technically, the first estimate was to be fixed before the conditions of the parts on the second estimate could be ascertained. It was only after carrying out the initial services that it came to light that if the engine problem had to be fixed properly, then it demanded further works to be carried out on the engine specifically, and an estimate for those works, purely on the engine, was given as GH¢38,657.55”. A copy of that pro forma invoice was also tendered as Exhibit 3 at trial.

 

(20) The Defendant’s witness further testified that after the engine was pulled down as instructed by the Plaintiff, through her husband, the estimate of how much it would cost to fix the problem was given to the Plaintiff and the Defendant waited for the payment so that the work on the engine could start. But, rather than “paying the money for the work on the engine to start, the Plaintiff rather deemed it more useful to get her lawyer to write to the Defendant making unsubstantiated allegations.

 

(21) Mr. Adjei said upon the receipt of the lawyer’s letter, he confronted the Plaintiff’s husband over the untruths contained in the lawyer’s letter and Mr. Okoe Neeguaye, the husband confirmed to him that indeed they had given their approval for the engine to be pulled down and worked on but the only problem they had was that the estimate given was too high for their pockets to bear and that they would prefer the problem to be fixed at a lower invoice. The witness also said the Plaintiff’s husband further confirmed that the problem with the engine was long overdue for which reason he gave his consent for it to be fixed. A copy of the correspondence was tendered as Exhibit 4 at trial.

 

(22) According to Mr. Adjei, the Plaintiff’s allegation of negligence by the Defendant is denied as unsubstantiated and a cunning way of running away from her duty to pay for the services already rendered to her and also to be further rendered to her. Moreover, it is the case of the Defendant that “they did not drop the engine because they had caused any problem to it, but rather, they dropped the engine on the instructions of the Plaintiff’s husband to enable them fix same on the basis that there was a rattling noise in the engine when they try to start the engine especially in the mornings”. To the Defendant therefore “it was never the negligence of the Defendant’s technician that resulted in the engine not starting. Contrary to the Plaintiff’s averments in paragraph 2 of her Reply and Defense to Counterclaim that the engine had to be pulled down because we could not start the engine after the initial services. The problem with the Plaintiff’s engine was a mechanical failure, which is normally caused by wear and tear of moving parts”.

 

(23) I start my analysis in the resolution of first issue by stating that from the pleadings and the evidence heard at trial, negligence is the anchor by which the Plaintiff has made her claim. The question though is after hearing from the parties, can it be said that the anchor should hold? It is trite learning that the tort of negligence requires more than “heedless or careless conduct”. See the opinion of Lord Wright in LOCHGELLY IRON & COAL CO. v. McMULLAN [1934] AC 1 @ 25. The law is that the injured party must establish that the Defendant owed him/her a duty to take care to protect him from the kind of harm suffered; that he was in breach of that duty; and that it was the Defendant’s breach which was found to be the cause of the Plaintiff’s injury. For one to be successful in a negligence claim, duty, breach and causation must be established.

 

(24) According Winfred & Jolowicz on Tort[1], negligence is the breach of a legal duty to take care which results in damage, undesired by the Defendant to the Plaintiff. The learned authors give the basic ingredients as: 

“i) A legal duty on the part of A towards B to exercise care in such conduct of A as falls within the scope of the duty;

ii) Breach of that duty; and

iii) Consequential damage to B”

 

(25) To say that a person is negligent in law is another way of saying that he owes a duty of care to another and that the duty has not been observed and/or not carried out. In other words, that duty of care is breached and the breach has resulted in damage to the person. See also the old celebrated case of DONOGHUE v STEVENSON (1932) AC 562 and HEAVEN v PENDER (1883) 11 Q.B.D 503

 

(26) By the authorities, the law is that whether a duty exists or not is sometimes straightforward but other times not so straight forward. There are numerous and extensive categories of situations which are treated by the Courts as imposing a duty of care. In the case of EDWARD NASSER & CO LTD. V. McVROOM & ANOTHER [1996-97] SCGLR Acquah JSC stated that the categories of negligence are not closed, although a relation of proximity must exist before a duty of care can arise, the duty must depend on all of the circumstances of the case and that it must be considered whether it is just and reasonable to impose a duty.

 

(27) In the instant case, the Plaintiff’s case for negligence appears to be hinged on the doctrine of “res ipsa loquitur” in establishing the case of negligence against the Defendant. It is common knowledge that in order to discharge the burden of proof placed on the Plaintiff, usually the Plaintiff would be required to prove specific acts or omissions on the part of the Defendant, which would qualify as negligent conduct. There are however circumstances by which the Court would be prepared to draw an inference of negligence against the Defendant without hearing detailed evidence of what happened or what the Defendant did or did not do.

 

(28) In the case of ASAFO v. CATHOLIC HOSPITAL OF APAM [1973] 1 GLR 282, Wiredu J (as he then was) sitting at the High Court, Cape Coast held that “where an event occurred such as would not in the ordinary course of things have occurred without negligence, as in the present case, then the doctrine of res ipsa loquitur could be applied”.

 

(29) It is trite learning that for the doctrine to be applicable, the principal requirement is that the mere fact of the incident/accident having happened should tell its own story and raise the inference of negligence so as to establish a prima facie case against the Defendant. Consequently, a decision that res ipsa loquitur applies is a decision that the Plaintiff is entitled to judgment unless the Defendant can exonerate itself. In effect, a burden of some kind is cast upon the Defendant. See the case of ABOAGYE v. KUMASI BREWERY LTD [1964] GLR 242.

 

(30) In the Canadian Supreme Court case of Fontaine v. British Columbia (Official Administrator) 1998 Can LII 814 (SCC), [1998] 1 S.C.R. 424 to support the proposition that the use of the maxim of res ipsa loquitur was not helpful as a legal maxim. Mr. Justice Major said, as follows:

For res ipsa loquitur to arise, the circumstances of the occurrence must permit an inference of negligence attributable to the defendant. The strength or weakness of that inference will depend on the factual circumstances of the case. As described in Canadian Tort Law (5^th ed. 1993), by Allen M. Linden, at p. 233, “[t]here are situations where the facts merely whisper negligence, but there are other circumstances where they shout it aloud.”

As the application of res ipsa loquitur is highly dependent upon the circumstances proved in evidence, it is not possible to identify in advance the types of situations in which res ipsa loquitur will arise. The application of res ipsa loquitur in previous decisions may provide some guidance to when an inference of negligence may be drawn, but it does not serve to establish definitive categories of when res ipsa loquitur will apply. It has been held on numerous occasions that evidence of a vehicle leaving the roadway gives rise to an inference of negligence. Whether that will be so in any given case, however, can only be determined after considering the relevant circumstances of the particular case.

I note that Mr. Justice Major in this case opined that in view of the fact that in every negligence case the Plaintiff has the onus of proof and in view of the fact that the legal maxim was hardly used it is somewhat meaningless to refer to that as a doctrine of law and should be treated as having “expired”.

 

(31) In the case of SCOTT v. LONDON & ST. KATHERINE DOCKS CO (1865) 3 159 E.R. 665 the Court of Appeal in directing a new trial stated the burden of proof as follows:

“As to the burden of proof: ‘so in an appropriate case the Plaintiff establishes a prima facie case by relying upon the fact of the accident. If the Defendant adduces no evidence there is nothing to rebut the inference of negligence and the Plaintiff will have proved his case. But if the Defendant does adduce evidence that evidence must be evaluated to see if it is still reasonable to draw the inference of negligence from the mere fact of the accident. Loosely speaking this may be referred to as a burden on the defendant to show he was not negligent, but that only means that faced with a prima facie case of negligence the defendant will be found negligent unless he produces evidence that is capable of rebutting the prima facie case.’

 

(32) It is imperative to note that the doctrine cannot be invoked when the facts of the accident are sufficiently known. In BARKWAY v SOUTH WALES TRANSPORT CO LTD (1950) 1 All ER 392, the Plaintiff was injured in a road accident when the bus he was travelling in burst a tyre and crashed. The reason for the burst was a defect in its wall, which could not have been discovered beforehand. It was held that res ipsa loquitur was inapplicable. The Defendants were found liable because they had not instructed their drivers to report heavy blows to tyres. Lord Norman stated:

‘The fact that an omnibus leaves the roadway and so causes injury to a passenger or to someone on the pavement is evidence relevant to infer that the injury was caused by the negligence of the owner, so that, if nothing more were proved, it would be a sufficient finding of liability against him. As to the doctrine of res ipsa loquitur: ‘the maxim is no more than a rule of evidence affecting onus. It is based on commonsense, and its purpose is to enable justice to be done when the facts bearing on causation and on the care exercised by the defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant.’

 

(33) In my respectful opinion after reading the literature and case law of the maxim of res ipsa loquitur and its use both here in Ghana and other common law jurisdictions, the issue becomes simply whether, after weighing the whole of the direct and circumstantial evidence, the Plaintiff has established a prima facie case of negligence against the Defendant, and that inference has not been negated by the Defendant’s evidence. The legal burden of proof, of course, remains on the Plaintiff throughout and does not shift. It only shifts when the doctrine is said to apply, then the Defendant must provide sufficient evidence to rebut the inference of negligence raised by the Plaintiff and what that entails varies based on the strength of the inference and the standard of care called for in the circumstances of the case.

 

(34) Applying all the principles above to the instant case it is my judgment that to determine whether or not the Defendant was negligent in the handling of the Plaintiff’s vehicle and whether the doctrine of res ipsa loquitur is applicable the question that ought to be asked is whether or not the Plaintiff was aware of the problem with the vehicle when it was taken to the Defendant’s workshop and also whether Plaintiff consented to the pulling down of the engine by the Defendant’s staff/workers.

 

(35) Mr. Amoah in his written submission says the maxim applies because the vehicle was driven to the Defendant’ workshop in a good condition for routine servicing. To Counsel therefore the Defendant is in a better position to explain the alleged mechanical fault as the vehicle was in its exclusive control. In my respectful view Counsel has taken a simplistic view of the situation. The question ought to be why was the vehicle taken to the workshop? And what was the complaint of the Plaintiff when the vehicle was taken to the workshop but not as simply put by the Plaintiff.

 

(36) In this case I am of the respectful view that the Plaintiff’s Lawful Attorney and witness contradicted himself on the nature of the problem based on which the vehicle was taken to the workshop. For instance he testified that “On or about 10^th June, 2015 I drove the vehicle which was then road worthy to the Defendant’s workshop in Accra for its routine servicing and a check on a rattling noise in the engine”.

 

(37) Mr. Okoe Neequaye however, under cross-examination on 29th May 2018 testified as follows:

“Q.On 10^th day of June 2015 you sent the vehicle to the Defendant’s workshop for five different services. I am suggesting that to you

A. I sent the vehicle for normal services and there was a noise apparently from the exhaust.

 

Q. One of your request was that they should check and estimate rattling noise in the engine when starting in the morning

A. The request was for normal service and the noise and Emma told me that it was normal. I did not ask for any estimate

 

Q. You also made a request that they should check and estimate tail gate not locking. I am suggesting that to you

A. There was the noise coming from the back which I thought is coming from the exhaust”

 

(38) On further cross-examination on 1st June 2018 he gave evidence as follows:

Q. Please read paragraph 6 of your witness statement to this Honourable court

A. Witness reads.

 

Q. Your paragraph 6 means the Defendant Company were to check the rattling noise in the engine and not the exhaust as you said yesterday.

A. That is not the interpretation.

From the above discursive exchange it is clear that on both occasions he denied the fact that he stated earlier in his witness statement that he asked the defendant to check a rattling noise in the engine.

 

(39) Mr. Neequaye despite his stated position above subsequently admitted and conceded under cross-examination what he initially stated in his evidence in chief that the Defendant was to check the rattling noise in the engine. This transpired during cross-examination on 10th July 2018:

 

“Q. Per paragraph 6 of your witness statement there was a rattling noise in the engine, not so?

A. Yes my lord.

 

Q. The Plaintiff gave her approval through you for the engine to be pulled down and worked on, is that not the case?

A. Yes my lord. On the 2^nd of July 2015 after I had negotiated with the Manager and Emma and the cost was brought down to GH¢12,000 I gave the approval.

 

Q. It means you agree with me that the Defendant did not drop the engine because he had caused any problem to it but rather there was a rattling noise in the engine, not so?

A. No I do not agree with you. I sent my vehicle for ordinary servicing, on that day no mention was made of bringing down the engine, it was after two weeks when I had no option because I had wanted the use of my vehicle.

 

Q. You had enjoyed the services of the Defendant for several years before the incident, is that not the case.

A. Yes my lord”.

From the above discourse it is clear that the Plaintiff’s witness contradicted himself on why the vehicle was taken to the Defendant’s workshop.

 

(40) The Court notes that the Defendant’s witness told the Court that the Plaintiff, through her husband, brought her vehicle for the following services to be carried out:

              i.        Carry out 57731 KM servicing;

             ii.        Carry out Combo service;

            iii.        Carry out A/C treatment;

           iv.        Check and estimate tail gate not locking;

             v.        Check and estimating rattling noise in the engine when starting in the morning.

The above services were also indicated on the job card tendered in court by the Defendant’s witness as Exhibit E and Mr. Robert Neequaye signed this job card. To my mind the above and the job card affirm the assertion that as part of the services to be carried out the Plaintiff’s husband indicated to the Defendant to check rattling noise in the engine.

 

(41) Based on the above evidence it is also my finding that despite the Plaintiff’s Attorney’s testimony and his Counsel’s letter that “he did not require the engine to be brought down”, the Plaintiff consented to the pulling down of the engine and therefore his position that he had no idea as to why and how the engine was pulled down is not supportable by the evidence. First of all, it is my finding that the Defendant’s workers worked on the engine based on the instruction of the Plaintiff’s husband/Attorney to check on the rattling noise in the engine. Subsequently, the Defendant’s staff informed the Plaintiff that they could not start the engine and therefore they had to pull down the engine to detect the problem and the Plaintiff’s husband agreed that they pull down the engine. This fact is buttressed by the email correspondence between the Plaintiff’s husband and Emmanuel Adjei the Service Advisor of the Defendant Company where the Plaintiff’s husband did not deny giving approval for the engine to be pulled down. This was contained in Exhibit 4 Series tendered by the Defendant at trial without objection.

 

(42) To be precise, I note that on Wednesday, June 24, 2015 at 4:31 PM Emmanuel Adjei wrote to the Plaintiff‘s Attorney/husband the following e-mail after the Defendant Company received Exhibit B, the letter from S.K. Amoah, the Plaintiff’s lawyer dated June 23, 2015 by which he accused the Defendant’s technicians of negligence in handling the vehicle and also pulling down the engine when same was not necessary and without the consent of the Plaintiff. Mr. Adjei stated as follows:

“Dear Mr. Neequaye,

I have read the letter you sent to us today and I am really surprised you said you did not approved anything concerning pulling down of the engine to be worked on. We had a lengthy discussion on Friday 19^th June 2015 on the phone concerning pulling down the engine and you gave me the go ahead to work on the engine.

You followed up on Monday personally and I had a face to face discussion with you about the problem and you confirmed we should go ahead and work on the engine and update you as to what is wrong with the engine. Please provide your lawyer with the right information so that we know how to resolve the issues.

Thank you.”

 

(43) In response to the above letter, on Thursday, July 2, 2015 at 12:18 P.M. Okoe Neequaye, the Plaintiff’s husband and Lawful Attorney replied to Mr. Emmanuel Adjei’s email and stated as follows:

“Dear Mr. Emmanuel Adjei

I have not denied anywhere giving you instruction to fix the starting problem on the vehicle however the complaint is the huge bill your company is demanding as labor for just bringing down the engine and also the apparent negligence of some of your mechanics which I have told you about. The starting problem has long been an issue and its long overdue. Please at the end I want the problem solved at a reasonable cost.

Regards

Okoe Neequaye”

 

(44) To my mind the above is the crux of the matter. The letters exchanged by the Plaintiff’s Attorney and the Defendant’s Service Advisor clearly speak eloquently such that it undermines the Plaintiff’s contention that the vehicle was in a perfect condition and was sent to the Defendant’s workshop for a “routine service”. The email of Mr. Okoe Neequaye also undermines the Plaintiff’s lawyer’s letter that the engine was pulled down by the Defendant’s workers when same was not required and without the consent of the Plaintiff. Mr. Neequaye himself wrote that “The starting problem has long been an issue and its long overdue”. I am of the respectful opinion that being overdue, it had to be fixed finally using the appropriate method and mechanism by the Defendant. With respect to the Plaintiff, on the whole I find that Mr. Okoe Neequaye did not present himself as a witness who was confident or comfortable about his evidence on many important points and the above was one of them.

 

(45) Having evaluated the evidence heard at trial I hold that even though the Defendant as mechanics had a working relationship with the Plaintiff, which relationship was for them to repair the Plaintiff’s vehicle and so the Defendant owed a duty of care to the Plaintiff, in my respectful opinion that duty was not legally breached. From the evidence heard the Defendant did not exceed the instructions of the Plaintiff because the steps taken which included the pulling down of the engine was a reasonably foreseeable step. In my view it is reasonable that in fixing an issue relating to an engine it is not remote to pull down the engine for further work to be done. I am therefore of the view that the Plaintiff has not discharged the burden on her to prove that the duty owed her by the Defendant has been breached for which breach she has suffered damage. I also hold based on the above analysis that the evidence does not support the application of the maxim or doctrine of res ipsa loquitur as the Plaintiff knew of the problem with the vehicle before the vehicle was driven to the Defendant’s workshop. Consequently, I resolve the first rephrased issue against the Plaintiff.

 

I now turn to the second issue the Court rephrased above.

(46) Having concluded that the Defendant was not negligent in handling the Plaintiff’s vehicle, the next issue is whether the vehicle has been repaired and if yes why has the vehicle not been handed over to the Plaintiff? According to the Defendant’s witness “we did not detain the Plaintiff’s vehicle and thereby prevented her from the use of her vehicle”. It is the case of the Defendant that the “Plaintiff failed to make money available for the work to complete. Therefore, the vehicle is staying on our premises without any work currently being undertaking on it”. See paragraph 25 of the witness statement filed by Emmanuel Adjei on October 31, 2016.

 

(47) The above notwithstanding, by the Exhibit D2 on June 17, 2016 at 9:33AM, Mr. Emmanuel Adjei wrote to Mr. Okoe Neequaye an email with the subject titled VEHICLE – READY – GS 717-11 TOUAREG. He wrote:

“Dear Sir,

Please repairs on your vehicle has been done and the vehicle is ready for payment and collection. See attached the final bill. There was a down payment of GHC 12,000.00. The balance to be paid is GHC52,671.19.

Thank You

Emmanuel Adjei”

 

(48) From the evidence heard at trial, it is my finding that on the 9th July 2015 the Defendant sent the first estimate totaling GH¢ 23,321.83 to the Plaintiff of which the Plaintiff paid GH¢ 12,000.00. Subsequently a second estimate totaling GH¢ 38,657.55 was sent to the Plaintiff, but same was not approved after which she caused her lawyer to write to the Defendant stating her grievance/complaint about the conduct of the Defendant’s workers. The Court notes that though the Plaintiff did not approve of the second estimate submitted to her and thus did not approve of the commencement of the work on the vehicle, the Defendant still proceeded to work on the vehicle contrary to its own policy on approvals required before commencement of work. The following crucial evidence was elicited during the cross examination of the Defendant’s witness on October 25, 2018 when the Defendant’s witness was further cross-examined by the Plaintiff’s Counsel.

 

(49) This is what transpired:

Q. You issued the invoice attached to Exhibit “D” dated 9^th July 2015, as at that date had the Defendant determined what it was going to do on the vehicle.

A. Yes, my lord. This was the first estimate.

 

Q. The camshaft indicated as one of the parts on Exhibit “D” is the part that is found in the engine of the vehicle, not so?

A. Yes my lord.

 

Q. Exhibit “D1” was issued on 7^th October 2015 and as at that date, had the Defendant determine what it was going to do on the engine of the vehicle?

A. Yes my lord that was the second estimate.

 

Q. All the parts indicated on Exhibit “D1” are engine components, not so?

A. Yes my lord.

 

Q. Were you able to fix the engine with the parts indicated on Exhibits “D” and “D1”

A. No my lord, the part on Exhibit “D1” had not been approved by the customer.

 

Q. Did the approval ever come from the Plaintiff?

A. No my lord, we are still waiting for him.

 

Q. Take a look at Exhibit “D2” and tell the court whether or not you informed the Plaintiff that her vehicle had been repaired notwithstanding the approval you said was never given?

A. Yes, my lord, we informed the Plaintiff that her vehicle had been repaired.

 

Q. So, why did you go ahead to repair the vehicle when you said the approval had not been given?

A. It was because of his commitment of the down payment of GH¢12,000 and our relationship with the Plaintiff, this was agreed with our General Manager to have it done for her.

 

Q. Who agreed with your General Manager to have it done?

A. The agreement was between the General Manager and the Service Advisors.

 

Q. It was not until 17^th June, 2016 that you issued the invoice attached to Exhibit “D2” indicating that you had completed the repair of the vehicle.

A. Yes my lord.

 

Q. By that invoice, you quoted a total bill of GH¢64,671.19, is that correct?

A. Yes, my lord.

 

Q. You would see from the last invoice i.e. the invoice attached as Exhibit “D2” that many more spare parts were said to have been used beyond what was indicated in the earlier invoice, true or false?

A. True in the sense that the other jobs which the Plaintiff requested were done in addition to the engine repairs….

 

Q. I am suggesting to you further that by asking Plaintiff to pay GH¢64,671.19 for the repairs you claimed you did, the Defendant has rendered her vehicle uneconomic to use.

A. I disagree.

 

Q. I am also suggesting to you that that colossal amount that you are asking the Plaintiff to pay arises from your own negligence in handling her vehicle.

A. I disagree.” [Emphasis in Mine].

 

(50) It is noticeable from the evidence above that the question I have to answer on this issue is whether the Defendant’s demand for the work done on the vehicle further to its decision to proceed with the repairs of the vehicle after the Plaintiff had rejected the 2nd estimate is justifiable in law. The Plaintiff’s witness’ evidence on the issue is that he was sent an initial estimate of GH¢ 23,321.83. Mr. Neequaye said he negotiated with the general manager of the Defendant’s Company and it was agreed that the Defendant shall reduce the bill to GH¢17,000 and the Plaintiff shall pay for VAT on top of the GH¢17,000. According to the Plaintiff’s witness based on the said negotiation an amount of GH¢12,000 was paid but the vehicle could still not be fixed. See the cross-examination of the Plaintiff’s witness on May 29, 2018 and June 1, 2018.

 

(51) The further evidence of the Plaintiff’s witness which I accept is that after the payment of the GH¢12,000 and after the authorization had been given for the pulling down of the engine on/or about “the 7th of October 2015 the Defendant sent the Plaintiff another bill of GH¢38,671.00 on the basis that the Plaintiff should pay for a second work to be done on the vehicle. According to Mr. Neequaye “it was at that moment that I realized that I had to seek a redress in court”. From the record, the writ of summons was issued on December 1, 2015 against the Defendant.

 

(52) Now, by Exhibit D2, it is clear that whilst the matter was still pending for the determination the Defendant on its own proceeded to repair the vehicle by purchasing parts without the Plaintiff’s authorization and now claim an amount of GH¢52,671.19 from the Plaintiff as the final bill. In my respectful view, I substantially agree with the Plaintiff and her Counsel Mr. Amoah with respect to the evidence on this issue generally that the Defendant’s position which is also the basis for the counterclaim is not justified. Other aspects of the evidence that lead me to reject the Defence evidence on the issue include the following:

i.              Under Conditions of the Defendant’s Repair Order/Invoice – EXHIBIT “E”, it is provided that:

“The Customer hereby confirms that the above mentioned job should be carried out and any verbal or written estimates are not final…”

ii.             In this case Mr. Emmanuel Adjei conceded that the Defendant did not receive the approval and consent of the Plaintiff for the purchase of the parts and for repairs. He told the Court that “It was because of his commitment of the down payment of GH¢12,000 and our relationship with the Plaintiff, this was agreed with our General Manager to have it done for her”. The agreement he said was by the General Manager and the Service Advisors.

To my mind that was wrong and contrary to the Defendant’s own repair conditions.

 

(53) It is my considered opinion that it is clear that the stay of the vehicle on the Defendant’s premises is due to the contention around the amount involved for the repairs. That, notwithstanding based on the position the Plaintiff took after the submission of the 2nd estimate and the Defendant’s own policy, I am of the view that the Defendant should have obtained the approval of the Plaintiff before proceeding with the repairs especially as the amount involved is indeed very huge. To that extent, it is my holding that there is no justification for the recovery of the amount of GH¢52, 671.19 from the Defendant. With respect to the Defendant I think it is very unreasonable for anybody to pay over GH¢50,000 in 2016 to repair a vehicle purchased in 2011 for $68,000 US Dollars.

 

(54) Based on the above, it is my holding that the Plaintiff’s vehicle has remained at the Defendant’s premises because she refused to pay for the estimates submitted to her and therefore the Plaintiff cannot claim any damages from Defendant for the lack of use of the vehicle. On the other hand, I also find that the Defendant is also not entitled to its counterclaim as the work has been completed as a result of its unilateral decision to proceed with the repairs without the approval of the Plaintiff. Based on all of the above I hereby make the following order:

(a) That, based on all of the evidence I hold that because the Defendant denied that the initial GH¢23, 321.83 was reduced to GH¢17,000 the Plaintiff had the burden to prove that it was the case but she failed to discharge the burden. In the absence of any documentary proof to support the position of the reduction of the initial GH¢23,321.83, I conclude that the amount of GH¢23,321.83 shall be the basis for the resolution of this matter. Therefore, having paid the initial amount GH¢12,000, the Plaintiff is hereby ordered to pay to the Defendant the remaining balance of GH₵11,321.83 and the Defendant shall then forthwith release the repaired vehicle to the Plaintiff.

(b) It is also my order that each party shall bear its Cost.

 

(55) Before concluding, I wish to comment and say with the greatest respect to the parties that in the opinion of the Court none of them is clothed in glory in this litigation. With respect, it was a needless and costly litigation but there are no winners. The parties to my mind took entrenched positions and allowed their egos to override their emotions and therefore they failed to reason together. In my respectful opinion, this is a matter that should have been settled based on the record. For instance, why did the Plaintiff’s Counsel start off with the accusation of negligence against the Defendant Company and also made a demand of GH¢50, 000 when it is clear that Counsel’s letter of June 23, 2015 was anchored on facts which were wrong? Also, did Counsel become aware of the Plaintiff’s Attorney’s reply email of July 2, 2015, which clearly undermined his letter to the Defendant? Once these facts were revealed why did Counsel not engage the Defendants to have an amicable settlement of the matter? On the other hand, why did the Defendant also choose to take the position that paying the colossal amount of over GH¢52,000 to repair a vehicle of over 5 years was reasonable and cool especially when the initial estimate was around GH¢23,000? With the greatest respect to the parties and Counsel in my respectful opinion this is a clear case where litigation was avoidable but the parties chose to be litigious. What has unfolded in the facts of this case represents a clear case of failure to exercise restraint and failure to engage one another in a respectful way. A word to the wise.

 

CASES REFERRED TO

DOMFE v ADU (1984-86) 1 GLR 653.

ABABIO v AKWASI 111 [1994-95] Ghana Bar Report, Part 11, 74

RE ASHALLEY BOTWE LANDS: ADJETEY AGBOSU & ORS v KOTEY & ORS [2003-04] SCGLR 420

LOCHGELLY IRON & COAL CO. v. McMULLAN [1934] AC 1 @ 25

DONOGHUE v STEVENSON (1932) AC 562

HEAVEN v PENDER (1883) 11 Q.B.D 503

EDWARD NASSER & CO LTD. V. McVROOM & ANOTHER [1996-97] SCGLR

ASAFO v. CATHOLIC HOSPITAL OF APAM [1973] 1 GLR 282

ABOAGYE v. KUMASI BREWERY LTD [1964] GLR 242

FONTAINE v. BRITISH COLUMBIA (OFFICIAL ADMINISTRATOR) 1998 Can LII 814 (SCC), [1998] 1 S.C.R. 424

SCOTT v. LONDON & ST. KATHERINE DOCKS CO (1865) 3 159 E.R. 665

BARKWAY v SOUTH WALES TRANSPORT CO LTD (1950) 1 All ER 392