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Negligence - sufficient evidence
- Burden of proof - Fire
Outbreak at the premises -
Payment of an amount being the
total cost of the four vehicles
of the plaintiffs destroyed -
Interest on the said amount at
the prevailing commercial bank
rate - loss of earnings -
General Damages – Whether or not
the Judgment is against the
weight of the evidence -
Whether or not the
Court of Appeal also
misdirected itself as to the law
and facts - Section 11 (1) of
the Evidence Act 1975 (NRCD
323).
HEADNOTES
Appellants was to transport raw
materials for its factory in
four cargo trucks to the factory
premises. The vehicles arrived
after working hours and parked
on the premises of the factory.
Unfortunately there was a fire
outbreak on the factory
premises. The Ghana National
Fire Service (GNFS) were called
in but failed to bring the fire
under control with the result
that, it devastated the factory
buildings and warehouse and
burnt the appellants, after
investigations by the National
Fire service, they indicted that
the respondent was responsible
for the fire outbreak.
The respondent did not accept
responsibility for the fire
Nevertheless, the respondent
through its insurance company
sought to pay the appellants an
amount of money which the latter
rejected. The High Court found
in favour of the respondent, The
appellants’ appeal from the High
Court judgment was dismissed by
the Court of Appeal who took the
view that, the trial judge was
right in concluding that the
appellants did not lead
sufficient evidence of
negligence against the
respondent
HELD
This ground of appeal is moot as
the plaintiffs in their
statement of claim and evidence
said they rejected the GHs50,000
compensation offered them for
their burnt trucks, hence this
action. From all of the
forgoing, we find no merit in
the appeal and it is accordingly
dismissed.
STATUTES REFERRED TO IN JUDGMENT
Evidence Act 1975 (NRCD 323).
Criminal and Other Offences
(Procedure) Act, 1960 (Act 30)
Supreme Court Rules, CI 16
CASES REFERRED TO IN JUDGMENT
MENSAH v NATIONAL SAVINGS &
CREDIT BANK [1989-1990] 1 GLR
620
ASANTE v REPUBLIC [2017-2020] 1
SCGLR 132
FORI v AYIREBI [1966] GLR 627 SC
DZAISU v GHANA BREWRIS and GHANA
PORTS AND HARBOURS AUTHORITY &
CATAIN ZEIN v NOVA COMPLEX LTD
[2007-2008] 2 SCGLR 806
ARYEE v SHELL GHANA LTD & FRAGA
OIL LTD [2017-2020] 1 SCGLR 721,
ARMAH v HYDROFOAM ESTATES (GH)
LTD [2013-2014] 2 SCGLR 1551
BOOKS REFERRED TO IN JUDGMENT
DELIVERING THE LEADING JUDGMENT
OWUSU (MS.) JSC
COUNSEL
MOHAMMED ATTAH FOR
PLAINTIFFS/APPELLANTS/APPELLANTS.
AKOTO AMPAW FOR
DEFENDANTS/RESPONDENTS/RESPONDENTS
OWUSU (MS.) JSC:-
On 30th May, 2019,
the Court of Appeal, Accra,
dismissed plaintiffs’ appeal and
affirmed the judgment of the
High Court Tema dated 29th
September, 2017.
Dissatisfied with the decision
of the Court of Appeal, the
plaintiffs have appealed to the
Supreme Court.
The relief sought from the
Supreme Court is to set aside
and or reverse the Judgment of
the Court of Appeal.
Before dealing with
the arguments canvassed in
support and against this appeal,
we will give a brief background
of the case.
By its amended writ
of summons, the plaintiffs claim
against the defendant, the
following reliefs;
a.
The payment of an amount of Two
Hundred and Forty- Four Thousand
and Six Hundred Ghana Cedis
(Ghc244,600) being the total
cost of the four vehicles of the
plaintiffs destroyed in the Fire
Outbreak at the premises of the
defendant company which was due
to the negligence of the
defendant.
b.
Interest on the said amount at
the prevailing commercial bank
rate from the day the vehicles
were destroyed in the Fire
Outbreak 12/01/2013 till the day
of final payment.
c.
An order directed at the
defendant to pay to the
plaintiffs the loss of earnings
that would have accrued to them
for the use of the vehicles had
same not been destroyed in the
Fire caused by the negligence of
the defendant company at the
rate of Ghs 450.00 per day per
truck for five working days in a
week from 12/01/2013 till date
of final judgment.
d.
Interest on the said amount at
the prevailing commercial bank
rate from the day the vehicles
were destroyed in the Fire
Outbreak 12/01/2013 till date of
final payment
e.
General Damages.
f.
Costs including legal fees
The
defendant/respondent/respondent,
to be called “the respondent” is
a company that manufactures
plastics products in its factory
at Tema Industrial Area. On
Saturday, 12th April,
2013 the respondent engaged the
services of the
plaintiffs/appellants/appellants,
to be called “the appellants”,
to transport raw materials for
its factory in four cargo trucks
from the port of Tema to the
factory premises. The vehicles
arrived after working hours so
they parked on the premises of
the factory. Unfortunately, in
the night there was a fire
outbreak on the factory
premises. The Ghana National
Fire Service (GNFS) were called
in promptly but failed to bring
the fire under control with the
result that, it devastated the
factory buildings and warehouse
of the respondent and burnt the
appellants’ vehicles beyond
economic repairs. As part of
their statutory function the
GNFS investigated the cause of
the fire by setting up a
committee that inspected the
premises and interrogated some
of the workers of the
respondents and other witnesses.
After their investigations, they
prepared a report in which they
indicted the respondent of being
responsible for the fire
outbreak. The respondent
did not accept responsibility
for the fire and rather accused
the GNFS of being unprofessional
in managing the fire causing it
to spread extensively.
Nevertheless, the respondent
through its insurance company
sought to pay the appellants an
amount of money which the latter
rejected.
The appellants sued
respondents in the High Court,
Tema for the value of the
vehicles and loss of use on
grounds of negligence. When the
respondent was served with the
appellants writ of summons, the
former filed a defence with a
counter claim for contributory
negligence against the GNFS and
1st appellant who was
in fact their worker and owner
of two vehicles that were
destroyed in the fire outbreak.
They contended that the 1st
appellant was the official of
the company responsible for
maintaining the premises where
raw materials were stored and
the space where the vehicles
were parked on the fateful day.
In the trial in the High Court,
the appellants tendered and
relied substantially on the fire
report prepared by the GNFS who
despite being made a party
through the counter claim failed
to participate in the
proceedings and did not testify
even on their report. The
respondent on its part testified
through its board chairman and
called four witnesses. At the
close of the trial, the High
Court found in favour of the
respondent but did not grant its
counter claim. The court held
that the appellants built their
case on the allegation of
negligence on the part of the
respondent that caused the fire.
But failed to adduce sufficient
evidence of negligence.
The appellants’ appeal from
the High Court judgment was
dismissed by the Court of Appeal
who took the view that, the
trial judge was right in
concluding that the appellants
did not lead sufficient evidence
of negligence against the
respondent.
APPEAL TO THE SUPREME COURT.
The appellants have
further appealed to this Court
on the following grounds;
1.
The Judgment is against the
weight of the evidence.
2.
The Judges at the Court of
Appeal misdirected themselves at
Law as to the burden of proof on
the parties in relation to the
cause of the Fire Outbreak,
which legal burden they placed
on the plaintiffs which said
misdirection at Law occasioned a
substantial miscarriage of
Justice against the appellants.
This ground of appeal is raised
herein for the first time.
3.
The Court of Appeal also
misdirected itself as to the law
and facts regarding and in
relation to the principles of
Equity, morality, public policy,
the conduct and statements of
the Respondent and its works on
the totality of the evidence in
relation to the Evidence Act, (NRCD
323) section 26 and the burden
of proof placed on the
Respondent which misdirection
occasioned a miscarriage of
justice. This ground of appeal
is also being herein raised for
the first time.
4.
That the Court of Appeal got the
fact wrong when it stated that
Defendant’s Insurers paid the
Defendant an amount of fifty
thousand (Ghc50,000.00) as
compensation for the Fire,
contrary to the evidence on
record where Respondent admitted
collecting $1 million or Ghc1
million for the Fire Outbreak
and offered Ghs 50,000.00 for
the four trucks of the
appellants who rejected same.
In their statement of
case, the appellants impeach the
judgment of the Court of Appeal
on the grounds that the court
erred in law in the manner of
allocation of the burden of
proof in this case. They argued
that, since they only parked
their vehicles on the premises
of the respondent and the
vehicle got burnt, it was the
respondents who ought to have
been required to prove how the
fire occurred despite their
exercise of due care and not the
appellants who do not control
the place should be required to
prove the respondent’s
negligence. The appellants
assert that, even if the burden
of proof is placed on them to
prove the negligence of the
respondent, there is sufficient
evidence in the fire report that
proves that the fire was caused
by the negligence of the
respondent. In the
circumstances, we shall consider
the appeal on the lines of the
two issues that arise from the
submissions of counsel for the
appellants namely;
1.
Who in law bears the burden of
proof of negligence in the
circumstances of this case and;
2.
Is there sufficient evidence
on the record that proves that
the fire was caused by the
negligence of the respondent.
From the facts of the case, the
legal relationship between the
appellants and respondent was
that of a contractual bailees
and bailor. Where a bailee
suffers damage in the course of
such relationship, the bailor
can only be held liable if it
was negligent. See the case of
MENSAH v NATIONAL SAVINGS &
CREDIT BANK [1989-1990] 1 GLR
620. The appellants were
therefore right in pleading
negligence with particulars. The
allocation of the burden of
proof is provided for in Section
11 (1) of the Evidence Act 1975
(NRCD 323).
What the appellants are now
saying would have applied if
they have pleaded res ipsa
loquitor. That would have
shifted the burden of proof on
the respondent as rightly
submitted by counsel for the
respondent in his statement of
case. It is too late to seek to
rely on res ipsa loquitor.
The appellants also argued
that, the fire report was
prepared on statutory authority
so they did not need an official
from the Fire Service to
testify. That is not wholly
correct. It is true that under
Section 126 0f the Evidence Act,
such a report is admissible as
an exception to the hearsay
rule, but it is only prima facie
evidence. Therefore, if the
report is challenged, the author
must be called to be cross
examined on it. See the case of
ASANTE v REPUBLIC [2017-2020]
1 SCGLR 132, 144 where His
Lordship PWAMANG JSC delivering
the Judgment of the Court on the
admission and use of DNA report
as scientific evidence had this
to say;
“We wish to also say a few words
about the DNA evidence that has
been adduced in this case which
appears to be a new area of
scientific evidence as far as
our country’s criminal justice
system is concerned, Section 121
of the Criminal and Other
Offences (Procedure) Act, 1960
(Act 30) provides that in any
criminal proceedings a
scientific report may be used as
evidence of the facts contained
in it. A scientific report is
a prima facie evidence of the
matters contained in it and not
conclusive evidence so the law
requires that where the accuracy
of a scientific report is
disputed in proceedings then the
person who undertook the
investigation or examination and
produced the report should
testify and subject himself to
cross-examination
(our emphasis)
Relating the Asante case supra
to the case under consideration,
the respondent in this case
challenged the report of the
GNFS and even counter claimed
against GNFS, so the latter was
required to testify.
Counsel for the appellants
also submitted that, the 1st
appellant who tendered the fire
report was not challenged that
the findings in the report were
not accurate so its accuracy is
deemed admitted by the
respondent. Counsel for the
appellants relied on the case of
FORI v AYIREBI [1966] GLR 627
SC to support his
submission. But this is not the
correct position of the law.
In DZAISU v GHANA BREWRIS and
GHANA PORTS AND HARBOURS
AUTHORITY & CATAIN ZEIN v NOVA
COMPLEX LTD [2007-2008] 2 SCGLR
806 the Supreme Court held
that, where a party adduces
evidence contrary to his
opponent, then even if he did
not controvert the opponent’s
evidence he cannot be deemed to
have admitted it. But contrary
to the submission of counsel for
the plaintiffs that the latter
were not cross examine on
Exhibit E, F and G, 1st
plaintiff who testified for
himself and for 2nd
and 3rd plaintiffs
was cross examined on the
Reports at page 99 of the record
of appeal when he was asked;
“Q. You also agree with me that
the fire service report that you
claim to be relying upon was not
able to specify complete the
cause of the fire?
A. My lord, the report points
out everything.
Q. I am suggesting to you that
is because you are mistaking the
import of the report that you
brought this issue to court.
A. No my lord”.
So, the question is, are the
conclusions and inferences drawn
by the High Court and affirmed
by the Court of Appeal supported
by the evidence on record?
In his judgment, the trial judge
agreed with the evidence of DW5,
the Fire Expect when he held
that;
“The Fire Investigation
(sic) could not just write
that personnel of the defendant
company were smoking even during
the fire fighting and leave it
at that; and attribute to it, a
probable cause to the very fire
incident. In effect, the cause
has no evidence, but the effect
has, meanwhile he claimed to
have observed both.
It seems to me from the
foregoing matters that serious
doubt is cast on the credibility
on the conclusions reached as a
probable cause of the fire. On
the fire report examined in its
entirety, I find the findings
generally unreliable and lean in
favour of the account of the
Fire Expert”.
We cannot but agree with the
trial Judge with this finding
and conclusion reached on
Exhibit E, F and G. This is
because from the evidence of
DW5, the Fire Expert, the 1st
defendant company practice
non-smoking in its premises as
there are ‘no smoking’ sign
placed on vantage points in the
company. He captured one of the
sign on Exhibit NSP which can be
found at page 394 of the record
of appeal. In the face of
Exhibit NSP, the trial Judge was
right in coming to the
conclusion that, Exhibit “E” was
unreliable. We say so for the
simple reason that, the evidence
of people smoking when the fire
was raging whilst the Fire
Officers were trying to put the
fire out is hard to believe in
the absence of further prove.
The next probable cause was
attributed to electrical fault.
In Exhibit ‘E’, the first
paragraph, bullet 7, the Report
states,
“Due to the Extent of damage, it
was impossible to trace the
electrical connections at the
affected warehouse. However,
remains of burnt electrical
wires were seen hanging”.
This is clearly
contradictory. If due to the
extent of damage it was
impossible to trace the
electrical connections, then on
what basis did the author of
Exhibit ‘E’ come to the
conclusion that, the probable
cause of the fire outbreak was
electrical fault.
No explanation has been offered
and same must be held against
the plaintiffs.
The
third probable cause as stated
in the Report is;
“Spontaneous ignition due to
poor segregation of stored
wares/materials couple with poor
housekeeping.”
This probable cause needs some
further explanation which
plaintiffs could not give. In
the face of the testimony of
DW5, Joseph Afari Idun (a Fire
Management Consultant) which
testimony was not shaken under
cross examination, coupled with
Exhibit NFPA 1, the Guide for
Fire Explosion Investigations
2004 Edition, which can be found
at pages 223 to 238 of the
record of appeal, the trial
judge was right in coming to the
conclusion that, Exhibit E, F
and G were unreliable as the
contradictions in the said
Reports were not explained.
Secondly, the Reports were not
professionally generated as it
failed to use the acceptable
codes and standards set by the
NFPA. But more importantly, the
Reports were tendered by the
plaintiffs through 1st
plaintiff who was not able to
explain some of the
contradictions in the Reports as
he is not the author. Thirdly
the trial judge saw and heard
DW5, believed him and came to
the conclusion that, in the face
of his testimony, the plaintiffs
failed to discharge the burden
cast on them in proving the
particulars of negligence in
their statement of claim in
terms of section 14 (1) of the
Evidence Act, (NRCD 323).
Consequently, the findings of
the trial Judge that the
plaintiffs were not able to
prove the particulars of
negligence they averred in their
statement of claim is clearly
supported by the evidence on
record and this court, as the
second appellate court cannot
substitute its own findings for
that of the trial court. Ground
(I) of the appeal fails and it
is accordingly dismissed.
This bring us to the allocation
of the burden of proof.
As rightly pointed
out by counsel for 1st
defendant, the legal burden of
proof of negligence of 1st
defendant is on the plaintiffs
who allege that, 1st
defendant was negligence and its
negligence resulted in the fire
outbreak in contention.
Plaintiffs went further to give
the particulars of 1st
defendant’s negligence. In
proving the alleged negligence
of 1st defendant the
plaintiffs tendered the Fire
Reports Exhibit E, F and G. The
1st defendant has led
evidence to discredit these
reports that they were not
professionally generated as the
methodology used did not meet
the acceptable standards and
guidelines as provided for in
Exhibit NFPA 1, a guide for fire
and explosion investigation 2004
Edition. Exhibit E, F and G were
also full of inconsistencies
which have not been explained as
demonstrated above. In the face
of the evidence of DW5 and
Exhibit NFPA 1, the trial judge
believed the evidence of DW5 and
Exhibit NFPA 1 as against the
evidence of 1st
plaintiff and Exhibit E, F and
G. The onus of proof required in
every civil trial was by
preponderance of probabilities
in accordance with section 12 of
the Evidence Act 1975, NRCD 323
and the amount of evidence
required to sustain that
standard of proof was dependent
on the nature of the issue to be
resolved. See the case of
ARYEE v SHELL GHANA LTD & FRAGA
OIL LTD [2017-2020] 1 SCGLR 721,
724. See also the case of
ARMAH v HYDROFOAM ESTATES (GH)
LTD [2013-2014] 2 SCGLR 1551,
where this Court held that, the
credibility of the witness and
his knowledge of the subject
matter are determinant factors
in proof of a point in issue.
In the context of this case, DW5
is an expert in Fire Management.
Secondly, Exhibit E, F and G had
been discredited. From the
forgoing, the High court and the
Court of Appeal did not err when
they held that the plaintiffs
bear the burden of proof and
were not able to discharge that
burden. This ground of appeal
has not been made out and it is
accordingly dismissed.
Ground (iii) of the appeal is
that;
The Court of Appeal also
misdirected itself as to the law
and facts regarding and in
relation to the principles of
Equity, morality, public policy,
the conduct and statements of
the respondent and its works in
totality of the evidence in
relation to the Evidence Act (NRCD
323) section 26 and the burden
of proof placed on
the Respondent which
misdirection occasioned a
Substantial miscarriage of
Justice.
The argument in support of this
ground is that, the High Court
and the Court of Appeal failed
to appreciate the fact that, the
1st defendant relied
on the Fire Report Exhibit E, F
and G to make Insurance claims,
but this is the same Report it
is seeking to repudiate and
denying its authenticity.
Counsel for the plaintiffs
therefore submitted that, it is
unfair, inequitable, immoral and
against public policy to allow
the 1st defendant to
use the Report to make Insurance
claim of over $1m for itself and
when it came to the turn of the
plaintiffs says the report is
not authentic. Counsel concluded
his submission on this ground
that, 1st defendant
cannot approbate and reprobate.
Additionally, the employees of 1st
defendant are estopped from
denying their statements to 2nd
defendant when they were
interviewed.
In answer to the
submissions on ground (iii),
counsel for the 1st
defendant submitted that, this
ground of appeal is
argumentative and in breach of
Rule 6 (4) of the Supreme Court
Rules, CI 16. Besides, the trial
Judge cast serious doubt on the
credibility of the Fire Report,
Exhibit E, F and G. Counsel for
1st defendant
therefore invited us not to
disturb this finding.
The credibility or otherwise of
the Fire Report, Exhibit E, F
and G had been dealt in our
discussion of ground (ii) of the
appeal and we do not intend to
revisit that analysis again. On
the 1st defendant’s
Insurance claim, that is a
matter between the 1st
defendant and its Insures. The 1st
defendant insured its property
and fire guttered it. It is only
natural for 1st
defendant to put in a claim and
it is up to the Insurers to
consider the content of the
Report and act upon it. We do
not find any merit in this
ground and it is accordingly
dismissed.
The last ground
of appeal is that;
That the Court of Appeal got the
fact wrong when it stated that
“Defendant’s insurers paid the
defendant an amount of Fifty
thousand Ghana Cedis (GHs50,000)
as compensation for the fire”.
This is contrary to the evidence
on record where Respondent
admitted collecting $1m or
GHs1million for the fire
outbreak from its insurers and
offered GHs50,000 for the four
trucks of the appellants who
rejected same.
This ground of appeal is
moot as the plaintiffs in their
statement of claim and evidence
said they rejected the GHs50,000
compensation offered them for
their burnt trucks, hence this
action.
From all of the
forgoing, we find no merit in
the appeal and it is accordingly
dismissed.
M. OWUSU (MS.)
(JUSTICE OF THE
SUPREME COURT)
ANIN YEBOAH
(CHIEF
JUSTICE)
G.
PWAMANG
(JUSTICE OF THE
SUPREME COURT)
N.
A. AMEGATCHER
(JUSTICE OF THE
SUPREME COURT)
C. J. HONYENUGA
(JUSTICE OF THE SUPREME COURT)
COUNSEL
MOHAMMED ATTAH FOR
PLAINTIFFS/APPELLANTS/APPELLANTS.
AKOTO AMPAW FOR
DEFENDANTS/RESPONDENTS/RESPONDENTS. |
