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JUDGMENT

MRS. J. BAMFORD-ADDO, J.S.C.:

This is an appeal by the Plaintiffs/Appellants/Appellants hereinafter referred to as the Plaintiffs. Plaintiff Hasnem Enterprise is a Limited Liability Company and the Defendants/Respondent/Respondent hereinafter referred to as Defendants is a Statutory Corporate Body, both parties doing business at Cape Coast. The Plaintiffs contracted with Defendant Corporation for the supply of electricity to their office for a fee. On 21st March 1981 the Managing Director of the Plaintiffs Company went to his office and when he switched on the lights there was an explosion of the bulbs from which smoke emitted. This resulted in power failure in the said office and damage to certain electrical appliances there. The appliances were listed in Schedule "A" and are the following:

2 Westinghouse air conditioners.

1 Indisit Frigidaire

2 D & MC Ceiling fans

2 Sanyo Electrical Standing fans

1 Transistor radio and record player

12 Fluorescent lights Complete Fittings

3 60 W Electric bulbs

1 IMB Copier II Machine

A report was made to the Defendant Corporation and workmen were despatched to the area. They found the fault to be a cut in the branch underground cable supplying electricity to the plaintiffs office which had burnt out resulting in the said cut. The main underground cable on the street was however intact.

The Plaintiffs sued Defendants for negligence or in the alternative breach of contract and claimed special and general damages. The particulars of negligence listed were eight in number and are

(a) Failing to instal fuses intended to "blow" to interrupt service from the Defendant Corporation's terminal box.

(b) Installing faulty fuses which failed to blow to interrupt service from the Defendant Corporation's terminal box.

(c) Failing to maintain or properly so to maintain the fuses so as to permit them to "blow" to interrupt service from the Defendant Corporation's terminal box.

(d)  Rating fuses lighter than the current rating of the cables they are supposed to protect.

(e)  Permitting the Service Cable to give way first.

(f) Failing to maintain and/or service properly the service cables leading to plaintiffs premises.

(g) Failing to regulate or properly to regulate the "load" on the service cable leading.

(h) In the alternative the Plaintiff will plead the doctrine of Res Ipsa Loquitur.

The Defendants admitted that there was a contract for the supply of electricity to the plaintiff's office but denied negligence. In their defense they averred that the cause of the fault was due to the overloading with heavy power consuming devises of the single phase electrical supply by the Plaintiffs without informing the Defendant Corporation, and also that the underground cables were unserviceable.

They counter-claimed for negligence and sought perpetual injunction restraining plaintiffs consumer from further use of electricity until they have wired the premises for a 3 - Phase supply. They claimed an amount of ¢1,000,000.00 being General Damages for gross nuisance, breach of contract, disrupting electricity supply to customers and weaking the system.

The Plaintiffs sought to prove the negligence of defendants as contained in particulars of negligence referred to above and in the alternative sought to rely on the doctrine of Res Ipsa Loquitur. At the end of an exhaustive analysis of the law and evidence adduced by the parties the trial Judge found that the Plaintiffs had not established a case of negligence against Defendants to warrant a judgment in their favour, he also dismissed the counter-claim of the Defendants as unmeritorious. The Plaintiffs thereupon appealed to the Court of Appeal which court by a majority of 2 - 1 dismissed the appeal hence the present appeal by them to this court. The Court of Appeal supported the finding of the trial Court that the Plaintiff failed completely to adduce evidence to prove the alleged particulars of negligence filed by them and held that:

"The appellants failed to adduce evidence to substantiate what they alleged in their pleadings or any default on the part of Respondents. No doubt the action either in contract or negligence must fail in the circumstance"

The grounds of the present appeal are:

(a)  That the judgment is against the weight of evidence adduced at the trial and

(b) The court erred when it held that the plaintiffs had not proved their case to warrant judgment in their favour.

Arguing Ground (b) Plaintiff submitted that the majority Judgment of the Court of Appeal was brief and simply endorsed the view of the trial Judge that the plaintiff failed to prove the particulars of negligence pleaded. They also attacked the findings that Res Ipsa Loquitur did not apply since the cause of the accident was known no doubt because of the particulars of negligence averred by Plaintiffs. They therefore upon submitted that the trial Judge's approach to the assessment of the evidence was wrong as his conclusion was not based on all the evidence available.

The trial court did in fact consider the case as a whole in an exhaustive examination of the whole evidence before coming to the conclusion that he did, but whether his conclusion was correct is another matter and remains to be seen.

On whether the Plaintiffs had discharged the burden of proof of negligence which lay on them the trial Court said:

"With regard to the particulars of negligence (a) through (g) the plaintiffs led no evidence. It appears it required expert evidence to establish these particulars the only one which the defendant did not dispute was (f) that they did not service or maintain the cables. The Defendants denied the cables were serviceable or maintainable . . . . . . Hence the Plaintiffs could still prove that the defendants were in breach of their duty to service or maintain the cables, despite the fact that there is no precedent. Here again there was no evidence. One wonders how an underground cable can be serviced or maintained . . . . . In short the plaintiffs failed to lead evidence to prove any of the grounds of negligence alleged and pleaded. There is no liability unless there is the result of negligence."

The trial Judge went on regarding issue of res ipsa loquitur thus:

"They (Plaintiffs) pleaded facts which tended to show how and why the fault occurred. It is thus clear that the principle of Res Ipsa Loquitur will not apply and I so hold. And even if that maxim applies yet the defendants have satisfactorily explained that the cable is not maintainable and that it was successfully serving the area until this accident occurred through no fault of theirs. They (Defendants) did nothing which caused even contributed to cause the cable to burn."

These findings of the trial Court are what the majority of the Court of Appeal affirmed and which are challenged in this appeal. Both Plaintiffs' grounds of appeal concern the effect and weight of the evidence adduced in the trial of this case.

Ground (b) is that:

"The Court erred when it held that the Plaintiffs had not proved their case to warrant judgment in their favour. "

Arguing this ground Plaintiffs submitted that the trial Judge erred in his holding that the principle of Res Ipsa Loquitur did not apply to this case for the reason that since the cause of the accident was known to plaintiffs as appearing in their filed particulars of negligence, the said doctrine did not apply. This finding was concurred in by the Court of Appeal. It is to be noted however, that the trial Judge despite this finding nevertheless correctly applied the principle to the available evidence when he considered the evidence and explanation given by the Defendants regarding the cause of the accident or fault. He discussed the legal principles involved in res ipsa loquitur and concluded thus:

"In this case the plaintiffs have said the accident was caused by a fault on the cable. They pleaded facts which tended to show how and why the fault occurred. It is thus clear that the principle of res ipsa loquitur will not apply, and I so hold. And even if the maxim applies yet the Defendants have satisfactorily explained that the cable is not maintainable and that it was successfully serving the area until this accident occurred through no fault of theirs. They did nothing which caused or even contribute to cause the cable to burn" (Emphasis mine)

The Judge after exhaustive examination of the available evidence finally came to the conclusion that on a balance of probabilities negligence has not been established against the Defendants and dismissed the case. Whether he rightly evaluated the effect of the whole evidence having regard to the principles involved in the doctrine of res ipsa loquitur is what I intend to analyse hereafter.

The doctrine of Res Ipsa Loquitur is not a rule of law, it merely describes the state of the evidence from which one may draw an inference of negligence to enable justice to be done where the cause remains unknown. The essence of the maxim was discussed in the case of Barkway v. South Wales Transport Co. Ltd. (1950) 1 All E.R. p.392 in holding (1) thus:

"The application of the doctrine of res ipsa Loquitur which was no more than a rule of evidence affecting onus of proof of which the essence was that an event which, in the ordinary cause of things was more likely than not to have been caused by negligence was by itself evidence of negligence, depended on the absence of explanation of an accident, but although it was the duty of the respondent to give an adequate explanation, if the facts were sufficiently known the question ceased to be one where the facts spoke for themselves and the solution must be found by determining whether or not on the established facts negligence was to be inferred."

The doctrine of res ipsa loquitur arises where the cause of an accident is not known or cannot be proved directly by evidence from which the inference of negligence can be made. Where the doctrine applies it is not necessary for Plaintiffs to give direct evidence of negligence. They may prove their case partly by indirect or circumstantial evidence in which case the plaintiffs must prove facts from which an inference of negligence on the part of Defendants and Defendants only may be reasonably inferred. The inference of negligence however may be made where the accident is consistent with negligence on the part of the Defendants than with any other cause since the accident is then said to "speak for itself". In such a case the court may find negligence against the Defendants where the facts are consistent with such findings unless Defendants give a reasonable explanation to show how the accident occurred without negligence on their part because such a finding is not automatic. According to Charlesworth and Percy on Negligence 8th Edition p.422 Par 5-104 "the maxim comes into operation:

"(1)  On proof of the happening of an unexplained occurrence.

(2) When the occurrence is one, which would not have happened in the ordinary cause of things without negligence on the part of somebody other than the plaintiff and

(3) The circumstances point to the negligence in question being that of the defendant rather than that of any other person."

Where all these three conditions are present it is then open to the Defendants to give a reasonable explanation to show that the cause of the accident was due to some other cause not occasioned by them so as to prevent the inference of negligence being made against them. The reason being that where the said explanation raises doubt about the Defendants' negligence the facts may speak less loudly and less convincingly than before and may exonerate them from the charge of negligence.

In any case where the cause of the accident is sufficiently known the doctrine does not apply because then the question ceases to be one where the facts speak for themselves and the cause would then have to be proved directly by the Plaintiffs to establish facts from which negligence can be reasonably inferred.

In this case having failed to establish by evidence the exact particulars of negligence averred by the plaintiffs as to the cause of the accident they were entitled to rely on the doctrine of res ipsa loquitur in proof of their case because then the cause of accident remained unknown, and the doctrine then applies to enable the case to be fairly determined in the interest of justice. That a plaintiff who tenders evidence directed at proving defendants guilt of negligence can also rely on the doctrine or res ipsa loquitur see the Australian case of Anchor Products v. Hedges (1966) 115 C.L.R. 493 where it was held that:

"A plaintiff who tenders evidence directed to proving the defendant guilty of a particular act of negligence is not thereby precluded from relying upon the principle of res ipsa loquitur."

and that:

"Where the principle of res ipsa loquitur applies the onus of proof of negligence remains, nevertheless upon the plaintiff."

per Windeyer J. in the said case:

"The cause of the action was negligence. The particulars of acts or omissions which were relied on as constituting the negligence alleged could, at the discretion of the trial Judge be expanded by amendment to meet matters that emerged in the course of the trial. The function of particulars in an action for negligence is not to define the cause of action, which is negligence, but to show what acts or omissions will be put forward as constituting it. This has been stated more than once by this court."

"........ To say that an accident speaks for itself does not mean that if no evidence is given for the defendant the plaintiff is entitled in law to a verdict is his favour. The occurrence speaks of negligence, but how clearly and convincingly it speaks depends upon its circumstances. It is evidence from which an inference of negligence may be drawn: it does not mean that this inference must necessarily be drawn although in some cases it may be evidence so cogent and compelling that any other conclusion would be perverse as du Pareq L.J. pointed out in Easson v. London and North Eastern Railway Co. (1944) 1K.B. 421 at p.425. But always the question whether the plaintiff has discharged the burden of proving his case depends upon the effect of the whole of the evidence given in the case including such inference as may be drawn from the happening of the accident, if its cause remains unexplained"

Therefore as seen from the above case the submission of the Plaintiff on the issue of the rejection by both the trial Judge and the Court of Appeal of the application of the doctrine of res ipsa loquitur to this case is well founded. Both Courts erred in their finding on this particular issue when they found that since the cause of the accident was known, the said doctrine did not apply.

However as I said earlier the trial Judge redeemed this error when despite this error he nevertheless went on to apply and consider the maxim as affecting the case before him. When he said

“It is thus clear that the principle of res ipsa loquitur will not apply, and I so hold. And even if that maxim applies yet the defendant have satisfactorily explained that the cable is not maintainable, and that it was successfully serving the area until this accident occurred through no fault of theirs. They (the defendant's) did nothing which caused or even contributed to cause, the cable to burn."

But the question that remains is whether the doctrine was correctly applied in this case.

I now move on to ground (a) of Appellant's grounds of appeal namely that the majority judgment of the Court of Appeal was against the weight of evidence. In negligence the burden of proof lies on the Plaintiffs who must adduce sufficient evidence from which negligence against the Defendants can be inferred. The tort of negligence involves a breach of duty on the part of a defendant who owes the plaintiff a duty of care and whose negligence has resulted in damage to the plaintiffs. Negligence is defined in the following cases. In Blyth v. Birmingham Waterworks Co. (1856) II Ex. 781 per Anderson B.

"Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do."

In modern times the same definition was given by Lord Wright in Lochgelly Iron and Coal Co. v. M’mullan (1934) A.C. 1 at p.25.

"In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission it properly connotes the complex concept of duty breach, and damage thereby suffered by the person to whom the duty is owing".

The damage suffered however must also depend on reasonable foreseeability otherwise no compensation would be payable. Since the Plaintiffs alleged negligence against Defendants the burden of proof lies primarily on them to establish on a balance of probabilities whether negligence can be inferred on the facts in order to win their case. The Plaintiffs relied in the alternative on the doctrine of res ipsa loquitur.

The Defendant denied negligence, and counter alleged that it was rather the plaintiffs who over loaded a single phase electricity supply to their office with heavy duty electrical gadgets thus resulting in the overheating and burning of the underground cables and accordingly denied liability. They also claimed that the underground cables were unserviceable and had served their purpose well until they were overloaded as alleged above. In applying the said doctrine to the evidence in this case it is necessary to consider the explanation given by the Defendants as stated above. The evidence of Plaintiff is that when the fault occurred he went to complain to the Faults Superintendent one E.K.D. Annan. He stated:

"The latter complained that there was too many complaints from the area; that he would come and check and if the fault happened to be due to me I would be charged. He came and tested and in spite of the fact that the main switch had been put off there was power. He then went to the main switches, pulled off the fuse and yet there was power. He went to the office and brought some workmen. They dug the street and discovered the main underground cable had broken in two parts .......". The cable was very old and overloaded."

This piece of evidence found confirmation in the evidence of the Defendants themselves. When D.W.2 was cross-examined he admitted in a question in cross-examination thus

"Q: You told the plaintiff if the fault was his he would be made to pay for the damage.

A: Yes, but I was joking with him, he being a friend. He also knew I was joking with that remark."

The point here is that the defendants or their employees knew that there had been frequent break down of electricity in that area through frequent complaints of same made to them but did nothing. Further after the occurrence of the fault they changed the old cable size 35mrn and fitted a bigger sized cable that is size 185mm in place of the old one. They also admitted that since the change no complaint had been received by them of faults emanating from the area.

These pieces of evidence are in my opinion very material to the consideration and determination of the issue whether the defendants exercised due care and diligence in the discharge of their duties as supplier of electricity and also to the issue of reasonable forceability of an accident occurring and resultant damage to those to whom they had contracted with for the supply of electricity. No doubt if the Defendants had heeded the ample warning that there was trouble on the cables and if they had investigated they would have identified the aged condition of the burnt underground cable before this accident occurred. As it is they ignored all the ample warnings of the impending accident and their failure to act in such circumstances in my judgment was the cause of the burning of the old cable and I so find as a reasonable inference on the evidence. Their explanation then that it was the overloading of the cables by the Plaintiffs is unacceptable and unreasonable considering also the fact that the burnt cable was supplying electricity to other offices in the whole building and not only to the Plaintiffs' office.

Furthermore the Defendants in their Statement of Defense Par.6 indirectly admitted their former lack of diligence in discovering the condition of the burnt cable earlier. They stated therein as follows:

"Par.6 Concerning paragraph 11 of the Statement of Claim defendants deny their negligence. Plaintiff himself confessed in paragraph 7 that when he made the report to the faults superintendent Defendant's workers proceeded to attend to the fault and upon inspecting discovered that an underground cable leading to Plaintiff's premises had been cut into 2 in the public street. This discovery can only come from defendants' diligent attention to the plaintiffs problem   ......"

This shows that if the Defendants had heeded previous warnings in the same diligent manner as they claimed above, that they applied in this case, then the accident would have surely been avoided. The Defendants ought to have, in the circumstances of this case reasonably foreseen the possibility of the burning of the old cables which in fact happened in the end. If the old underground cables had been changed earlier the accident would not have happened. In my opinion on the evidence available in this case there was clear evidence from which negligence on the part of the Defendants could reasonably be inferred since their explanation was unsatisfactory to absolve them from the charge of negligence in the circumstances of this case.

If the evidence had been properly evaluated and applied to the doctrine of res ipsa loquitur by the trial court it would not have dismissed the plaintiffs' claim and the same applies to the findings of the Court of Appeal which affirmed the trial Courts findings. The two findings were against the weight of evidence since on a balance of probabilities the plaintiffs were entitled to succeed in their claim against Defendants. The appeal therefore succeeds.

Regarding the award of damages I have had the privilege of reading in advance the judgment of my noble Brother Hayfron-Benjamin J.S.C. and I agree entirely with him on that issue.

C. HAYFRON-BENJAMIN, J.S.C.:

This is an appeal from the judgment of their Lordships in the Court of Appeal wherein the Appellants appeal from the decision of the High Court, Cape Coast, was dismissed - ESSIEM J.A. dissenting. The Appellants now appeal to this Court on two grounds:

“a. the judgment is against the weight of evidence adduced at the trial,

b. the Court erred when it held that the plaintiffs have not proved their case to warrant judgment in their favour. "

It seems to me clearly that this was a case in which both the High Court and the Court of Appeal having recognised the principal matters for consideration nevertheless misconceived the evidence and failed to draw the right conclusions from it. Patently, their judgments were against the weight of the evidence. I am therefore in wholehearted agreement with the statements of ESSIEM J.A. in his dissent where the learned judge writes:

"an Appellate Court is entitled to draw the right conclusion from the found facts and ....... may come to its own conclusion which may differ from that of the trial judge."

In this appeal—and I say so with great respect to them—their Lordship in the High Court and the majority in the Court of Appeal dwelt on inconsequentials, postulated on proof of negligence and the application of the doctrine of res ipsa loquitur and dismissed the Plaintiffs' claim. As I have said a careful appraisal of the Pleadings and evidence would have led to a different result from what was arrived at.

It was common ground that the Plaintiffs were the acknowledged customers of the Defendants. The issue of a contractual relationship between the parties was therefore irrelevant. There was evidence that the Defendants regularly billed the Plaintiffs for electricity consumed and the Plaintiffs paid. The Defendants by their statement of Defense virtually admitted the case of the Plaintiffs. The defendants admitted paragraphs 1 to 10 of the statement of claim which for the sake of regularity will be stated hereunder.

“1. Plaintiff is a limited liability Company with its registered office at Cape Coast and it sues per its Managing Director, Mr. Kojo Mensah of Cape Coast.

2. Defendant Corporation is a registered Corporate body with a business office in Cape Coast.

3. The Defendant Corporation has also contracted for a fee to supply Plaintiff Company with normal supply of electricity.

4. Sometime, Saturday, March, 21, 1981, at about 7.30 a.m. the Plaintiff's Managing Director, Mr. Kojo Mensah entered the premises of his office and switched on the electrical switches only to hear an explosion of electric bulbs in his said office.

5. Plaintiff avers further that minutes later, the fluorescent lights in the said office started emitting flames.

6. Plaintiff's Managing Director switched off the lights and quickly reported the occurrence to the Faults Superintendent in charge of the Defendant Corporation's office in Cape Coast.

7. An inspection by Defendant's workmen on the plaintiff’s premises indicated that the main underground cable to the meters had been cut into two in the public street.

8. Further to paragraph 7 supra, plaintiff avers that the broken electric cable was clearly a fault developed on the Electricity Corporation service cable connecting to the Plaintiff Company's premises.

9. Plaintiff Company subsequently sought the opinion on Expert Electrical Company, namely, Alex Dsane Electricals, Cape Coast.

10. The opinion of the said Expert Company clearly pointed out that the "fault" was from the Corporation's service cable."

It must be noted from the statement of Defense that there is a pleading in paragraph 3 thereof that the Defendants "are not in position to admit or deny paragraphs 4,5 and 6 of the statement of claim." It is now trite learning that such a pleading constitutes admissions of the opponents pleading.

A party need not plead to particulars except perhaps making a general traverse of the particulars as a whole. Yet the Defendants inferentially pleaded to the particulars. The defendants pleaded in their paragraph 6 of their Defense thus.

"6 Concerning paragraph 11 of the statement of claim defendants deny their negligence. Plaintiff himself confessed in paragraph 7 that when he made the report to the faults superintendent Defendants' workers proceeded to attend to the fault and upon inspection discovered that an underground cable leading to the Plaintiff premises had been cut into 2 in the public street. This discovery can only come from defendants' diligent attention to the Plaintiff’s problem." (Emphasis mine).

The Defendants also contended that:

"The cutting of the underground cable was accidental being due to fair wear and tear."

In my respectful opinion the Defendants pleading in their paragraph 6 of the statement of claim was admission of the particulars averred in their paragraph 11 of the Plaintiffs statement of claim. But in the face of these admissions were the Plaintiffs relieved from adducing evidence of those particulars? A critical examination of that paragraph will demonstrate that there was no clear admission. True there was a denial of negligence. But there was no unequivocal admission of these particulars for within the paragraph existed the possible defense that there had been diligent attention paid to the maintenance of the cable. The Plaintiff could therefore only be relieved from adducing evidence of the negligence if the Defendants admissions were clear and unequivocal. Indeed by their amended paragraph 11 of their statement of Defense the Defendants sought to turn the scales on the Plaintiffs by charging them with overload of the power supply and damaged the Corporations electrical system. This assertion as it turned out was to their knowledge untrue. In my opinion the plaintiffs gave such evidence of negligence and damage as to call upon the Defense to explain how the incident could have occurred without their being negligent.

In the High Court the learned judge found that:

"The Defendants .... owed a duty of care to the consumers to ensure that the cable was capable of serving all the places for which it was intended to serve and was actually serving. Whether or not the Plaintiffs were using a new or old meter would not ensure to the benefit of the Defendants, since they were aware of the existence of the meter, they were reading it and billing the Plaintiffs which bills they for their part were settling."

Having so found that the Defendants owed the Plaintiffs a duty of care, the Learned High Court judge proceeded to find whether there had been a breach of that duty. In other words whether the particulars of negligence had been proved. The learned judge concluded as follows:

"However, in Court they called no expert opinion with regard to the particulars of negligence (a) through (g) the Plaintiffs led evidence. It appears it required expert evidence to establish these particulars. The only one on which the Defendants did not dispute was (f) that they did not service or maintain the cables."

In the judgment of the majority of their lordships in the Court of appeal, they said in respect of the particulars that:

"They (Appellants) sought to do so by pleading in paragraph 11 of their statement of claim some particulars of negligence."

I have already expressed myself on the Defendants pleading to the particulars and I have concluded that they amounted to admissions of those particulars. Further there was evidence that the Plaintiffs were willing and ready to call the expert evidence but that the Defendants undertook to call such witness.

On the 6th June, 1995 when the Court sat there was this understated Court note before further evidence was led:

"ODRO informs court that he had wished to call Mr. Dapatem, Mr. Bondzie and Wardie all employees of Defendants but Mr. Korley states he himself will call them."(emphasis mine)

Now Mr. Korley was counsel for the Defendants and struck a bargain with Counsel for the Plaintiffs that he would call the expert witnesses whom the Plaintiff wished to call. True to his bargain Counsel called the three witnesses. The effect, however, was that the Plaintiffs were relieved of the burden of calling those witnesses and thereby enabled the witnesses to be cross-examined by their counsel. The effect of such a situation was that the Defendants were bound by answers adverse to the Defendants case elicited from their own witnesses. As it happened if the Plaintiff had called those expert witnesses the Defendants would have had no evidence to offer save some inconsequential and irrelevant questioning of the experts. For even in their examination-in-chief, the Defendants through their witness D.W. 1 stated in specific reference to particulars (d) and (f) stated:

"Not true the rating fuses were higher than the current rating of the cables they are supposed to protect .... Cables are buried and do not need maintenance. Not true the cables were too old. In my opinion, the cause of the incident was serious over-heating causing insulation to breakdown blasting the cables box. If the service cable gives way the supply will be interrupted; possible there will not be supply to the premises." (emphasis mine).

This witness stated, still in examination-in-chief, that the over-heating was caused by the overloading of the cables. The witness stated that the result of over-heating of the cable was different from over-loading the cable. He stated emphatically "Overloading cannot overvoltage." (emphasis mine)

Under cross-examination Counsel for the Plaintiffs delivered the coup de grace when he put the questions thus:

"Q.  You said over-loading does not cause over-voltage?

What does it mean?

A.  Yes. Over-loading means you stress to the point of breakdown, and over voltage is unusually high voltage.

Q.   What caused the fault on your cable?

A.   Serious over-heating." (emphasis mine)

The 2nd witness for the defendants was even more forthright in his evidence-in-chief for he stated that he "found that the fault came from an underground cable after I had examined It." And how did he get to the cable to examine it? Said he under cross-examination.

"I went to the site with a number of workers who I instructed to dig the ground till we reached the cable joint box, and on opening it I found the cable itself was burnt" (emphasis mine)

Cross-examination of this witness elicited the answer that the cable fault affected the whole of the U.A.C. building within which the Plaintiffs business was situated. In any case the Defendants 1st witness' assertion that "underground cables are buried and are not subject to maintenance" was seriously contradicted by D.W.3 when he stated in-chief that

"We replaced the cable with a new one, we fitted a new one . . . . which was bigger than the old one. That is what we do, we replace old cables with new ones" (emphasis mine)

In my respectful opinion the cause of the incident was serious overheating of the cable due to an unusually high voltage in an old underground cable. The cable belonged exclusively to the Defendants; they had exclusive control over its use and maintenance. The cable was to their knowledge deeply buried underground and the burning of the cable which caused the tear in the connecting wires occurred in the part of the cable leading to the public street.

In all the circumstances therefore it was res ipsa loquitur. The Plaintiffs were only required to establish that the incident occurred and the burden was then on the Defendants to establish how the incident could have happened without their being negligent.

The burden of proof of course, lies on the party alleging negligence to establish his case by a preponderance of evidence. Such proof will normally be discharged by the party so alleging if he offers evidence, inter alia of carelessness or want of care. But the situation giving rise to such a charge of negligence may not always be within the knowledge of the party making the allegation. Thus in certain cases it is possible for the party to rely on the mere fact that the incident occurred as affording prima facie evidence of want of due care on the part of the other party. What the learned authors of the learned treatise on TORTS by Clerk and Lindsell (12th ed) call "The classic statement of the circumstances in which he (party) is able to do so "is contained in the English case of SCOTT v. LONDON 7 ST KATHERINE DOCKS (1965) 3 H 7 C 596 at page 601 where EARLE, C.J. said: "there must be reasonable evidence of negligence. But where the thing is shown to be under the management of the Defendant or his servants and the accident is such as in the ordinary course of things does not use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care."

Then as Devlin J (as he then was) put it in the English case of SOUTHPORT CORPORATION v. ESSO PETROLEUM CO. LTD. (1953) 3 W.L.R. 773 at 781 "res ipsa loquitur is a principle which helps him (plaintiff) to do so"

In the instant appeal, as I have said, had the Plaintiffs called the experts witnesses, as indeed they were going to call them, the Defendants would have had no evidence to offer. As it happened the evidence offered by the Defendants was rather in favour of the Plaintiffs to the effect that it was only they the Defendants who knew what caused the incident. In their evidence-in-chief D.W. 1 stated that "The fault was outside the premises of the Plaintiff." If indeed the fault occurred outside the Plaintiffs premises then it was they who knew how the incident could have occurred without their being negligent. The Defendants offered no explanation and I therefore adjudge them liable in negligence for the incident, which occurred affecting the delivery of electricity to the Plaintiff's premises whereby the Plaintiff was damnified.

Before us Learned Counsel for the parties did not advert our attention to the issue of damages. It appears they were content to press the issue of liability and leave it to the Court to as it were "give them something". This practice was frowned upon in the English case of BONHAMCARTER vs. HYDE PARK HOTELS LTD. 64 T.L.R. 177 where the Court said:

"Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak, throw them at the head of the Court saying: 'This is what I have lost; I ask you to give me these damages.' They have to prove it."

However by their amended writ of summons the Plaintiffs claimed "¢500,000.00 General and Special Damages for breach of contract for the supply of Electricity and/or alternatively for negligence and/or nuisance." It seems the Plaintiffs writ was further amended with leave of the Court for the Court notes for the sitting on the 24th June 1985 states "Application for leave to amend the amended writ of summons ........ asks for amendment to read General Damages ........"

By Court: Leave to amend granted."

A third attempt at amending the plaintiff's writ of summons failed. In my respectful opinion I must from the tenor of the judgment and the nature of the evidence led conclude that the Plaintiff's action was in damages for the negligence of the Defendants.

The pleadings were inelegantly drafted and it appeared the Plaintiffs had not given any particulars of the damage. In fact the particulars of damages had been given. For in their statement of claim paragraph 13 thereof stated:

"13. By reason of the said negligence of the Defendants Corporation, substantial damage was caused to electrical and other properties belonging to the Plaintiff Company. The list of the damage properties is attached herein as schedule "A". The schedule A was an itemized list of goods damaged and expenditure which the Plaintiffs claimed to have suffered as a result of the Defendant's negligence. The total sum claimed was ¢300,771.50 for both special and general damages. The Learned High Court judge acknowledged in his judgment that  "All the relevant witnesses testified that the IBM Copier Machines got spoiled, and I do accept that" (emphasis mine)

The Learned High Court judge did not accept that the bulbs were blown out as a result of the cut in the underground cable. But the Defendants witness said in evidence

"when there is an over-voltage, bulbs may blow up and other electrical appliances may be affected."

It was this over-voltage (over-heating) which in the view of this witness for the defense caused the incident.

I do not think that in view of the above statement by the Defendants' witness any useful purpose will be served by an examination of the electrical and other equipment which the Plaintiffs complained got spoiled. However, it will suffice to add that the Plaintiffs witness, MISS SARAH AGGREY under cross-examination stated categorically

"The Air-conditioners could not function. They got spoilt at the same time as the machine. They had been functioning before." (emphasis mine)

The majority decision of the Court of Appeal did not deal at all with the issue of damages - no doubt because they were dismissing the appeal. The dissenting opinion however considered the issue of damages—but in a very lackadaisical manner. In my respectful opinion the plaintiffs suffered the special damage claimed and they are entitled to the amount ¢103,771.50 as being that part of their special damage stated in the schedule "A" to their statement of claim.

The Plaintiffs made a claim for the loss of use of machine—presumably the Photocopying machine. The Plaintiffs estimated the period of loss of use at 48 working days at ¢1 500 per day. This claim cannot be classified as a head of special damage. Loss of use is properly a head of general damages. The Learned authors of the Treatise on TORT to which I have referred in this opinion state:

"When a chattel is damaged by a wrongful act, one direct consequence is that the owner beside being put to the expenses of repairing it, is deprived of its use during the period of repair, and for this loss of use he is entitled to recover. The question is what is the use which, but for the wrong he would have had his chattel, and what (excluding the element of uncertain and speculative and special profits) he would otherwise have earned by its use."

I adopt this principle and apply it to the appeal in hand.

Miss Sarah Aggrey testified in-chief that she operated the photocopier and charged the customers for the service. She tendered two books "exhibits F and G" which were some of the books in which she recorded the daily income. She estimated the machine could not be repaired for about three months "until they sent for some white engineers". There was clearly evidence of loss of use. The Defendants did not cross-examine on this evidence. As between the evidence of Miss Aggrey and the Plaintiffs' claim for 48 days loss of use I incline to the more realistic figure in the particulars. There is no evidence that the books "exhibits F & G" were examined by their Lordships in the High Court or in the Court of Appeal. I therefore accept the figure of ¢72,000 as being reasonable and I would award it to the Plaintiffs.

There is evidence that the Plaintiffs had contracted with a MR. KUMI-BRUCE for the printing of certain material for which he would pay ¢279,010.00 and paid a deposit of ¢30,000 leaving a balance of ¢249,010.00. The agreement was executed on the 22nd January 1981. The photocopier was out of use between 20th March 1981 and 31st May 1981 by which time MR. KUMI-BRUCE had collected 7 copies each of 9 volumes. There is no evidence of any other payment in diminution of the contract price. Now general damages are a species of damages, which the law presumes to flow from a wrong complained of and which need not be specifically pleaded. The plaintiffs did not plead this head of damage. But I am satisfied that there was a loss of their bargain. The figure of ¢150,000.00 stated in the particulars is only an indication of a general loss. Had the plaintiff left the damages at large I would have awarded the full loss of ¢249,010.00 as general damages. In the circumstances I will award ¢175,000.00 as reasonable damages for the loss of expected income.

In the result I make the following awards.

a.  Special Damage              . . . . .      ¢103,771.50

b.  Loss of use of machine   . . . . .         ¢72,000.00

c. General damages              . . . . .        ¢175,000.00

       Total                                               ¢340,771.50

This is a case in which neither the High Court nor their Lordships in the Court of Appeal treated the case with the seriousness it deserved. I have restrained myself from making any other comments in the circumstances save for the mild expressions of disapproval for their Lordships approach to the issues before them.

I will therefore allow the appeal, set aside the majority judgment in the Court of Appeal and in its place enter judgment in favour of the Plaintiff-Appellants in that Court. I will also set aside the judgment of the High Court and in its place enter judgment for the Plaintiffs for the reliefs claimed.

The Plaintiffs will have their costs in the High Court, Court of Appeal and in this Court.

AMPIAH, J.S.C.:

I agree that the Appeal be allowed.

ACQUAH, J.S.C.:

I will allow the Appeal.

ATUGUBA, J.S.C.:

I will reserve for another occasion a consideration of the questions whether the maxim res Ipsa Loquitur creates a rebuttable presumption or is merely a rule of inference, as provided by sections 18 et seq. of the Evidence Decree, 1975 (NRCD 323). Can the doctrine consistently continue to operate under its common law independence or there is the need for its capture and domestication under the regime of the Evidence Decree?

However, on the facts of this case I do not think that a consideration of these matters would lead me to a conclusion different from that of my Lord the President.

I therefore concur in the allowance of this appeal.

COUNSEL

Mr. Nutifafa Kuenyehia for the Appellant.

Mr. F.K. Korle with the Adu Amankwah for the Respondent.

I.W.