IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT(COMMERCIAL DIVISION)
ACCRA - A.D 2016
NANA YAW OPARE ADDO - (Plaintiff)
WESTERN AUTOMOBILE -(Defendant)
DATE: 10TH FEBRUARY 2016
SUIT NO: RPC/256/12
JUDGES: JUSTICE JENNIFER A. DODOO (MRS) JUSTICE OF THE HIGH COURT
SUSANNAH NYAMPONG FOR PLAINTIFF
RICHARD TWUMASI -ANKRAH FOR DEFENDANT
On 20th January 2014, the Plaintiff filed an amended writ of summons and statement of claim in which he claimed against the Defendant, the following reliefs:
a. General Damages
b. Special Damages of GH¢15,000.00
c. Loss of use d. Costs
It was the Plaintiff’s case as set out in his Statement of Claim that on 30th June 2011, he delivered his Nissan Pathfinder vehicle to the Defendant’s garage for repair works which included straightening, pulling and balancing, spraying among others. On the promise of the vehicle being fixed within 4 weeks, he paid a deposit of GH¢2,500.00.
He contended that the Defendant was unable to fix the vehicle in the scheduled time and as a result requested for an extension of time within which to complete repairs. He said when he went for the vehicle; he found out that the sun roof which was to have been repaired by the Defendant was still faulty. In the end he took the vehicle away only to find that the vehicle was not performing up to standard. It was his contention that it later came to his notice that the vehicle whilst in Defendant’s custody had been flooded and that accounted for its malfunctioning. He therefore had to expend more sums of money to have the electrical works and engine working again to his satisfaction.
The Defendant in its Amended Statement of Defence filed on 29th June 2015 denied the Plaintiff’s claim saying that the vehicle was not motorable in the first instance. The Defendant stated that the vehicle was a write off and that it was only agreed that the Defendant was to straighten, carry out pulling and balancing, filling and spraying and that this was to cost GH¢2,950.00. The Defendant denied being contracted to work on the engine and maintained that the Plaintiff was not entitled to his claim.
The following were set down as issues for trial:
1. Whether or not Plaintiff’s vehicle was in a motorable condition at the time of delivery to the Defendant?
2. Whether or not the Defendant breached the agreed period for the repairs to the vehicle?
3. Whether or not the vehicle was inundated while in the custody of the Defendant?
4. Whether or not the vehicle was delivered to the Plaintiff in a far worse and damaged condition than he sent it to the Defendant?
5. Whether or not the Plaintiff incurred additional costs in repairing the damage occasioned by the breach of the Defendant’s obligation?
6. Whether or not the Plaintiff has suffered loss?
7. Whether or not Plaintiff was made aware that the vehicle was a write off at the time same was sent to the garage?
8. Whether or not it was agreed that the Defendant must concentrate on straightening, pulling and balancing, filling and spraying?
9. Whether or not the Defendant was engaged to undertake works on the engine component or the repair of the engine?
10. Whether or not the Plaintiff wanted and in fact procured the damaged parts of the vehicle which he did intermittently?
11. Whether or not the Plaintiff forcibly took the car away without the consent of the Defendant and in the process failed or refused to sign Defendant’s undertaking form for release of the vehicle?
12. Whether or not the Plaintiff hijacked and assaulted the Defendant’s employee”
Counsel for the Plaintiff argued in her closing address that the case fell within the legal area of bailments. She referred to Halsbury’s Laws of England 3rd Edition Vol. 2 at p. 94 which stated as follows:
“A bailment properly so called is a delivery of personal chattels in trust on a contract, express or implied, that the trust shall be duly executed and chattels redelivered in either their original or an altered form, as soon as the time or use for or condition on which they were bailed shall have elapsed or been preformed. To constitute a contract of bailment the actual or constructive possession of a specific chattel must be transferred by its owner or possessor (the bailor) to another person (the bailee) in order that the latter may keep same or perform some act in connection therewith, for which such actual or constructive possession of the chattel is necessary.”
Counsel argued that the transaction between the parties was a contract of bailment. Counsel referred to pp 114-115 of Halsbury’s Laws of England which defined what a contract of bailment was in these words:
“The contract for custody for reward which is consensual and need not be evidenced in writing, necessitates for its inception the concurrence of the following conditions:
1. The subject matter must be a chattel;
2. The possession of the chattel must be capable of transference from one party to the other and actually be transferred;
3. The custody of the chattel must be the object of transference of possession;
4. The transference of the custody of the chattel must be temporary and not permanent.
A custodian for reward is bound to use due care and diligence in keeping and preserving the article entrusted to him on behalf of the bailor. The standard of care and diligence imposed on him is higher than that required of a gratuitous depository, and must be that care and diligence which a careful and vigilant man would exercise in the custody of his own chattel of a similar description and character in similar circumstances. He is therefore bound to take reasonable care to see that the place in which the chattel is kept including the tackle connected with it, is fit and proper for the purpose, to see the chattel is in proper custody, to protect it, against unexpected danger should that arise, to recover it if it is stolen and to safeguard the bailor’s interest against adverse claims, and if it is injured through his negligence, he will not be excused on the ground that it was subsequently destroyed by inevitable mischance.”
Counsel also referred the court to the cases of Agyeiwa v. P & T Corporation (2007/2008) SCGLR 985 arguing that DW1’s evidence was uncannily similar to PW2 in his description of the vehicle and thus corroborated the Plaintiff’s evidence.
Issues 1 and 7 are similar in content as they both deal with the state of the car at the time it was transferred from the Plaintiff’s custody into the Defendant’s custody. These issues are:
Whether or not Plaintiff’s vehicle was in a motorable condition at the time of delivery to the Defendant?
Whether or not Plaintiff was made aware that the vehicle was a write off at the time same was sent to the garage/
It is not in dispute that the Plaintiff’s vehicle was delivered to the Defendant’s workshop. It was for the Defendant to carry out works on the said vehicle. To quote Halsbury’s Laws of England supra:
To constitute a contract of bailment the actual or constructive possession of a specific chattel must be transferred by its owner or possessor (the bailor) to another person (the bailee) in order that the latter may keep same or perform some act in connection therewith, for which such actual or constructive possession of the chattel is necessary.”
The Plaintiff’s chattel, i.e. the vehicle fitted the above description and was delivered to the Defendant for works to be carried on.
Whilst the Plaintiff insists that it was motorable, the Defendant claims it was a write off and that decision was conveyed to the Plaintiff.
The Plaintiff in his evidence in chief on 27th November 2013 told the court that the vehicle was an accident vehicle. But did that make it unmotorable or a write off?
The Plaintiff has denied that the car was unmotorable. The Defendant is equally insistent that the car was a write off.
PW2 who described himself as an auto mechanic told the court when he first examined the vehicle, it could not move due to a problem with the BOM power terminal. He described the condition of the vehicle under cross-examination. This is what ensued on 19th May 2014:
Q: But you are saying that the first time you had to tow the car to your workshop?
A. When the car arrived in Ghana, the Uncle called me to go to the port to start the vehicle before they took it but due to my busy schedule, I could not make it. That was Thursday. So they towed the car to their house on that very Thursday. So on Friday morning I went there to have a look at the vehicle and the next day that was Saturday in the morning I went back to go and start the vehicle for them before I asked them to drive it to my workshop for the other works to be done.
Q: Can you describe the state in which it was?
A. Yes. My Lord, it was an accident vehicle. The wind shield was broken, the driver door was also in a way you cannot really close it very well. The way I saw it, I can easily detect that something had fallen on it. It was not flattened, it was something I went in. That is where I was able to program it. I started it, I drove it outside the gate and I brought it inside and I told them it had not affected the chassis, so it can be driven to wherever they wanted to do the body works or the straightening works.
Q. I am putting it to you that the car until it was straightened and all that could not be driven?
A. It was a drivable vehicle. That is what I know.
The Defendant’s version of events is encapsulated in his evidence given on 25th June 2014. He stated as follows:
My Lord, last 2 years ago at 2011, I went to the port for our normal clearing of vehicles from the port. On my return to the office, I saw a Nissan Pathfinder parked, completely damaged, salvage flat, parked in the yard around 5.30 in the evening. I asked the security people and they told me they towed the car to the premises. I asked them who and who towed the car and they described the owner and one of our officers called Mr. Tijani Atakorah, he is the service officer. So the following morning I asked him who had brought such a car into the premises. He told me .. that a friend introduced that person to him. I instructed him immediately that the state of the car is beyond repairs so they should tow the car away from the premises…….. I said I do not know the owner, the state of the car we cannot work on the car so they towed the car away from the premises. So the following morning when he came to the office, I insisted Mr. Atakorah makes sure that they return the car. Later in the afternoon, he came to my office telling me the owner said that he had imported all the components and he will bring the components for us to fix it for him. So what he needs us to do was to pull the car, straighten it, do the other body works and spray the car. So I said if that is what he is saying, I still disagree.
Diverse versions of the vehicle’s condition have been led. The Plaintiff’s evidence has been corroborated by PW2 who stated that he fixed the problem with the vehicle and that it was able to move. The Defendant says it was towed to the workshop. But from his evidence, he was not present when it was brought. It was his contention that he saw the vehicle and inquired how it got there only to be told that it was towed into the premises. He did not call any witness to prove that the vehicle was indeed towed.
In the case of Mojolagbe v. Larbi and others (1959) GLR 190, the court had this to say:
“Proof in law is the establishment of facts by proper legal means i.e. the establishment of an averment by admissible evidence. When a party makes an averment… he is unlikely to be held by the court to have sufficiently proved that averment by merely going into the witness box and repeating that averment on oath if he does not adduce that corroborative evidence which if his averment is true is bound to exist.”
The Defendant in giving evidence said the car was a write off and that fact was made known to the Plaintiff. However at no time in the evidence did the Defendant say when and where he had informed the Plaintiff of this fact. In his own words, he said he had expressed his sentiments to Mr. Atakorah, but did he say so to the Plaintiff? And why accept the contract to work on the vehicle if its condition was so poor that it could not be worked on?
In the case of Zabrama v. Segbedzi (1991) 2 GLR 221 CA the court stated:
“The correct proposition is that a person who makes an averment or assertion, which is denied by his opponent has the burden to establish that his averment or assertion is true. And he does not discharge this burden unless he leads admissible and credible evidence from which the fact or facts he asserts can properly and safely be inferred. The nature of each averment or assertion determines the degree and nature of that burden.”
This position was re-affirmed in the case of Continental Plastics Ltd v. IMC Industries (2009) SCGLR 298 @ 306-307. So if the Defendant had evidence of the vehicle being a write off and unmotorable, it had to lead evidence in that direction. It woefully failed to do so.
Furthermore, Exhibit F, the Customs Documents describe the car as a Nissan Pathfinder Station Wagon for which the appropriate duties were paid. This amounted to GH¢11,163.47
In his evidence, DW1who said he was a mechanic working with the Defendant Company made the following observation:
Q. Now cast your mind back to somewhere on 30th June 2011. Was any Pathfinder delivered to your place and what happened?
A. My Lord, I do recall that I came to work one day and saw Nissan Pathfinder which had been involved in an accident with the top crushed and the glass broken. My Lord the car could not start. I fixed it and it was able to start.
In cross-examination, he identified Exhibit G as the state at which the vehicle was in at the time he saw it at the Defendant’s workshop. Exhibit G2 indicates that the vehicle was “Salvage Nissan Pathfinder 4.0 62006 repairable vehicle for sale in the Nissan inventory from Salvage Auto Auction. The Plaintiff’s version of events has been further corroborated not only by PW2 but also by DW2. Section 7(1) of the Evidence Act, 1975 NRCD 323 has it thus:
“Corroboration consists of evidence from which a reasonable inference can be drawn which confirms in a material particular the evidence to be corroborated and connects the relevant person with the crime, claim or defence.”
The court finds that the vehicle was not a write off.
Moreover, the Plaintiff’s case was corroborated by the PW1, the DW2 and the evidence on record. In the case of Atadji v. Ladzekpo (1981) GLR 219 the court held that whenever the testimony of a party on a crucial issue is in conflict with the testimony of his own witness on that same issue it is not open to a trial court to gloss over such a conflict and make a specific finding on that issue in favour of the party whose case contains the conflicting evidence on the issue. See also the case of Manu v. Nsiah (2005/2006) SCGLR 25 where the court stated that the well established rule was that where the evidence of a party on a point in a suit is corroborated by witnesses of his opponent, whilst that of his opponent on the same issue stands uncorroborated even by his own witnesses, a court ought not to accept the uncorroborated version in preference to the corroborated one unless for some good and apparent reason the court finds the corroborated version incredible impossible or unacceptable. See also Agyeiwaa v. P & T Corporation (2007) 2 SCGLR 985
The burden of producing evidence of a particular fact is initially on the party with the burden of persuasion as to that fact (See Section 17(2) of the Evidence Act, 1975 NRCD 323). This burden continues to shift depending on the nature of evidence adduced by the parties and their witnesses. In Re Ashalley Botwe Lands: Adjetey Agbosu and Others v. Kotey and Others (2003/2004) SCGLR 420, the court held that by the statutory provisions of the Evidence Act, the burden of producing evidence in any given case was not fixed but shifted from party to party at various stages of the trial depending on the issues asserted and/or denied. The court also held that by the combined effect of Section 11(1) and 14 of the Evidence Act,, a Defendant who wished to win his case was required to lead evidence on issues he desired to be ruled in his favour. As a result, the Defendant had the duty to help its own cause by adducing before the court such evidence which would ensure a finding in its favour. On the above issues, the Plaintiff and his witnesses and to some extent, DW2 have given evidence that the vehicle was not a write off as the Defendant would wish this court to believe but that it could be driven and was indeed driven after being repaired.
The next issues of relevance are:
Whether or not the vehicle was inundated while in the custody of the Defendant and
Whether or not the vehicle was delivered to the Plaintiff in a far worse and damaged condition than he sent it to the Defendant?
The Plaintiff told the court he took delivery of his vehicle from the Defendant. He noticed some changes regarding the vehicle. He therefore took it to another mechanic for diagnosis. It was then revealed to him that the car had been flooded.
It was PW1’s evidence that for about 3 years, the Defendant used to give him contracts to spray vehicles for him. The Plaintiff’s vehicle was once such vehicle. He took delivery of it from the Defendant’s premises. After he had finished with spraying the vehicle, he returned it to the welder at Odawna. Whilst the vehicle was at Odawna, there was a heavy rainfall and the vehicle consequently got flooded. Upon viewing for himself that the vehicle was submerged in water, he informed the Defendant.
The Defendant’s representative in his evidence to the court on 25th June 2014 deposed as follows:
So I asked Atakorah and Co and the officers to continue to execute the job that he has assigned to them. So when he did that almost few months we finished the straightening and the pulling, there was a component that normally when we do not have those components we call an external service people to come and assist. So we gave it to a gentleman who was providing that service to us on the Graphic Road. I gave the car to him myself. Immediately we gave the car to him, he came to me that he is travelling to Spain so he cannot work on the car. …… A week after Mr. Atakorah told me that the external technician we gave the car to has consulted another friend to resolve the issue. …….. Unfortunately there was a heavy rain in Accra and Atakorah came to me that they heard that area was flooded. ……. I saw that car. The flooding was like to the level of the tyre, the beam level that was where the flooding was. But because the boot was not working, there was a lot of water which entered the car. ……. So we moved the whole car to our workshop, dewax the whole car, strip the whole car completely because even if small water enters the car you still have to do dewaxing.
From the Defendant’s representative’s own evidence, the vehicle was delivered to the Defendant’s workshop for work to be carried out on it. The Defendant itself subcontracted part of the work to someone in Odawna. That subcontractor did not have a direct relationship or contract with the Plaintiff. The subcontractors i.e. the PW1 and the welder were the Defendant’s agents. In Halsbury’s Laws of England, 4th edition Volume 1 p. 481 it is put as follows:
As a general rule, a principal is responsible for all acts of his agent within the authority of the agent, whether the responsibility is contractual or tortious.
Under the topic Contractual Relations it is put as follows:
As a general rule, any contract made by an agent with the authority of his principal may be enforced by or against the principal where his name or existence was disclosed to the other contracting party at the time when the contract was made.
Did the Defendant owe the Plaintiff a duty of care? Has there been a breach of that duty? And was damage caused by that breach?
In any event, it is trite learning that when property is submitted to another’s care in bailment, there is a duty on the bailee to return to the bailor, the property in a safe and sound condition. The established principle in law is that where one had a duty of care towards another, the breach of that duty leads to liability in damages. Since the Plaintiff entered into the contract with the Defendant and not with the other subcontractors, the Defendant would be held liable for the acts of its agents. The vehicle was inundated whilst it was in the welder’s possession. Being the Defendant’s agent, the court finds that the vehicle was inundated while in the Defendant’s custody.
After this incident, the Plaintiff went to a second garage Prinstec Ultra Modern Garage. On 26th March 2012, he received a report from the said garage. This was tendered in evidence as Exhibit D. The contents are:
Ref: Flooded on 2006 Nissan Pathfinder Chassis No. 5NIAIR8U6C609160
I act and write on the instructions of my client, the owner of the above-mentioned vehicle (Mr. Ohene Opare Addo.)
Based on the mechanical assessment made on the above-mentioned vehicle, we find out that the vehicle has been flooded. Due to that it has caused a whole lot of mechanical damages to the vehicle.
see the attached copy of the evidence of the listed items damaged, the items caused carriage was the electrical part.
We also hereby attached pictures as other evidence.
Exhibit C and C1 listed car parts which had a total value of GH¢11,900.00. Exhibit D indicates that the entire vehicle needed an overhaul due to the flooding. It was after the flood that the estimates were given in Exhibits C and C1. Obviously, the Plaintiff’s vehicle was left in a worse condition than in was prior to going to the Defendant and the court finds so accordingly.
Whether or not the Plaintiff incurred additional costs in repairing the damage occasioned by the breach of the Defendant’s obligation?
Whether or not the Plaintiff has suffered loss?
Exhibit E is a receipt for vehicle car parts to the tune of GH¢3,000.00.
These other issues were also settled for trial:
Whether or not the Defendant breached the agreed period for the repairs to the vehicle?
Whether or not it was agreed that the Defendant must concentrate on straightening, pulling and balancing, filling and spraying?
Whether or not the Defendant was engaged to undertake works on the engine component or the repair of the engine?
Whether or not the Plaintiff wanted and in fact procured the damaged parts of the vehicle which he did intermittently?
Whether or not the Plaintiff forcibly took the car away without the consent of the Defendant and in the process failed or refused to sign Defendant’s undertaking form for release of the vehicle?
I find these issues not germane to the matter at stake. It was not in dispute at all that the Defendant was engaged only to straighten, pull and and then to carry outbalancing, filling and spraying. The energy expended in leading evidence on this matter was not necessary being that it was never in dispute at all. It was also not in dispute that the Defendant was not engaged to carry out works on or repairs to the engine.
No cogent evidence was led to answer the issue of: Whether or not the Plaintiff hijacked and assaulted the Defendant’s employee. The court would not expend any effort in attempting to determine same.
From the evidence both oral and documentary, the court finds that the Defendant had breached its duty of care towards the Plaintiff to return the vehicle to him in if not in an improved condition, then in the very same condition it was in at the time the Defendant took possession of it. Since it had failed in its duty of care, it was liable in damages to the Plaintiff.
What would be the natural and probable consequence of this breach of duty? In Delmas Agency Ghana Ltd v. Food Distributors International Ltd (2007/2008) SCGLR 748, the court held that “general damages is such as the law would presume to be the natural and probable consequence of the Defendant’s act. It arises by inference of law and therefore need not be proved by evidence. The law implies general damages in every infringement of an absolute right. The catch is that only nominal damages are awarded”
In the case of Yungdon Industries Ltd v. Roro Service (2005/2006) SCGLR 816 the court held that general damages was such as the law would presume to be the natural or probable consequence of the Defendant’s act. It would arise by inference of law and therefore be unnecessary to be proved by evidence and might be averred generally. See also Nartey-Tokoli v. Volta Aluminium Company Ltd (1989.90) 2 GLR 341 @ 369 where the court said:
The measure of damages in all actions for breach of contract is the same, namely the pecuniary loss sustained provided that such loss flows naturally from the breach in question and this will be the case whenever the loss is such as any reasonable person knowing all the circumstances existing at the time of the breach which are known or ought to be known by the Defendant would have contemplated as likely to result by the breach in question.
The Court would award the Plaintiff an amount of GH¢20,000.00 in general damages.
The Plaintiff has made a claim for GH¢15,000.00 as special damages being the total cost of repairing the damage caused by the flood. The Plaintiff was required in the circumstances to particularize and to prove its actual loss. These would come under the heading Special Damages. In the case of Delmas Agency Ghana Ltd v. Food Distributors International Ltd (2007/2008) SCGLR 748 the court had this to say:
Special damages are distinct from general damages. General damages are such as the law will presume to be the natural or probable consequence of the Defendant’s acts. It arises by inference of law and therefore need not be proved by evidence. The law implies general damage in every infringement of an absolute right. The catch is that only nominal damages are awarded. Where the Plaintiff has suffered a properly quantifiable loss, he must plead specifically his loss and prove it strictly. If he does not, he is not entitled to anything unless general damages are also appropriate.
In the case of Yamusah v. Mahama & Another, (1991) GLR 551, it was held that special damages were based on facts within the peculiar knowledge of the Plaintiff, so he must first plead them and then go on to prove them strictly in court and that these must not be too remote. In the case of Andreas Bschor GMBH & Co v. B. W. C. Ltd (2008) 4 GMJ 203 the court quoting from Stroms Bruks Aktie Bolag v. Hutchinson (1905) AC 515 @ 525-526 per Lord Macnaghten had this to say:
“Special Damages are such as the law will not infer from the nature of the act. They do not follow in ordinary course. They are exceptional in their character and therefore, they must be claimed specially and proved strictly.”
In Fosua & Adu-Poku v. Dufie (deceased) and Adu-Poku Mensah (2009) SCGLR 316, the court held that Section 11(4) of the Evidence Act, 1975 NRCD 323 put the obligation in civil proceedings of producing evidence on a party to produce sufficient evidence so that on all the evidence, a reasonable mind could conclude that the existence of the fact was more probable than its non-existence.
See the cases of Malm v. Lutterodt (1963) 1 GLR 1 and Appiah v. Asamoah (2003/2004) SCGLR 226 and Section 11 of the Evidence Act.
The PW2 testified that he had changed all the items listed in Exhibit C and C1. These came to GHC11.,990,00. Also in evidence is Exhibit E which are items not found on Exhibit C and C1 i.e. a Pathfinder mother board, windscreen and pressure sensor.. These items totaled GH¢3,000.00. The grand total of these figures is GH¢14,900.00. The court orders the Defendant to pay an amount of GH¢14,900.00 to the Plaintiff.
The Plaintiff has sued for loss of use. He did not lead evidence on this. Did he have to hire another vehicle? Aside of stating in his Statement of Claim that he had to hire a taxi for 5 months at a fee of GH¢150 a day, he did not give any details in his evidence on oath. In the case of Dzaisu v. Ghana Breweries Ltd (2007/2008) SCGLR 539 it was held that a bare assertion of a party of his pleadings in the witness box without proof did not shift the evidential burden onto the other party. One is also reminded of Blay J.S.C. in Chahin & Sons v. Epope Printing Press  1 G.L.R. 163 at 168, S.C. when he said:
“They (i.e. the plaintiffs-respondents), merely presented a list of articles they alleged they had lost, fixed prices to them, and without attempting in any way to prove their values, expected the court to award them damages to the tune of the amounts claimed”.
There was no attempt by the Plaintiff to lead evidence to show how what the amount of GH¢150 a day entailed. In Botchway v SIC (1993/94) 1 GLR 89 the court held that it was seriously handicapped in evaluating the damage done and financial loss suffered by the Plaintiff as no evidence was led to establish same. This court is similarly handicapped due to the non-existence of evidence. The court will not award special damages for unproven expenses.
Costs of GH¢10,000.00 is awarded against Defendant.
JENNIFER A. DODOO (MRS)
JUSTICE OF THE HIGH COURT