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JUDGMENT
OWUSU-ANSAH, JA.
This is an appeal from the
judgment of the Circuit Court
Odumase-Krobo. It would conduce
to clarity of thought if the
relevant facts are recounted in
detail. On the 16th November
1995, the elders of Saisi, a
suburb of Odumase-Krobo, decided
to tidy up the township and also
to fill up the potholes on the
motor roads in the town.
Accordingly, communal labour was
organised. A truck was also
hired, which conveyed gravels
for the filling up of the said
potholes. The Plaintiff was one
of the young men who joined the
elders to do the communal labour
at Saisi during that period.
The job could not be completed
that day and so it became
necessary to engage another
truck, because of the
unavailability of the first
original truck to convey the
gravel.
Consequently the elders
approached the second Defendant
and hired his tipper truck No.
GR 9617D for the purpose.
According to the Plaintiff, as
the 1st Defendant did not know
where to deposit the gravels the
elders asked him to go and show
the 1st Defendant where the
loads were to be deposited.
In the morning of the 17th
November, 1995 the Plaintiff
waited for, and stopped, the
Driver of the tipper truck No.
GR 9617 D (1st Defendant.)
At the request of the 1st
Defendant the Plaintiff joined
the truck to go and discharge
some cement blocks then in the
vehicle.
After discharging the blocks the
Plaintiff sat in the front seat
of the truck, the 1st Defendant
Driver boarded the truck and
drove off.
In the course of the journey the
1st Defendant stopped and gave a
certain lady a lift; she sat
between the Plaintiff and the
1st Defendant.
The road, according to the
Plaintiff’s evidence, was “rough
and sloppy”. He shut the door
and the Driver started the
engine. The vehicle moved
forward and then stopped.
Suddenly the tipper truck
started moving uncontrollably
and went over a certain bridge.
The front door opened in the
process. He fell down from the
vehicle, and fainted, waking up
at the Atua Hospital. He
sustained serious injuries, and
received treatments at Atua
Hospital, Akosombo Hospital,
Koforidua Hospital and then at
the Korle-Bu Teaching Hospital
Accra. He now urinates through
a catheter tube.
1. The Plaintiff therefore sued
the Defendants jointly and
severally for general damages
for injuries sustained by him as
a result of negligent/driving of
vehicle No. GR 9617D by the 1st
Defendant, in the course of his
employment as agent/servant of
the 2nd Defendant, on the 17th
November 1995.
2. The Plaintiff further claims
special damages of ¢400,000.00
being medical and transport
expenses incurred at Atua
Hospital, Akosombo Hospital,
Koforidua Hospital and Korle-Bu
Teaching Hospital, from 17th
November 1995 to the date of
this writ.
The Plaintiff gave particulars
of negligence as including
incompetent handling of the
diesel Servo vehicle:
- Negligently allowing the
ignition to go off rendering the
vehicle uncontrollable.
- Failure to move, control, or
manage the truck so as to avoid
the occurrence of the accident.
- Failure to secure the door
lock firmly to prevent it from
opening.
- The plaintiff went on to give
details of the serious injuries
suffered including:
- Serious injuries to the
urethra system.
- Painful right leg, right hip
joint.
- Swollen tender lower abdomen
with bladder injury.
- Inability to walk due to seven
bodily injuries.
- The need to wear catheter tube
through which to urinate.
The Defendants denied liability
altogether, save the admission
that 1st Defendant was the
driver of the vehicle at the
material time and that the said
vehicle (GR 9617D) was owned by
the 2nd Defendant.
The Defendants alleged that the
plaintiff forcibly opened the
car gate and jumped out of the
vehicle when vehicle was in
controlled motion but was
bumpy. The injuries, if any,
which the plaintiff sustained,
were his own making.
The Defendants vehemently denied
negligence and refuted totally
the particulars of negligence,
and denied that any injuries
sustained by the plaintiff were
in any way attributable to the
Defendants.
Finally, the Defendants aver
that out of humanitarian concern
they spent cash ¢300,000.00 in
addition to providing transport
to convey plaintiff to the
hospitals listed in his
statement of claim.
At the SUMMONS FOR DIRECTIONS
stage a number of issues were
set out for trial:
Issues (1) Whether or not the
plaintiff is a professional
Driver
(2) Whether or not the plaintiff
led the communal labour Group to
fill the potholes in town.
1. Whether or not the plaintiff
boarded the tipper truck on the
insistence of the 1st Defendant.
2. Whether or not the 1st
Defendant did what he ought to
have done in sparking a
Diesel Engine vehicle.
3. Whether or not the 1st
Defendant was negligent.
4. Whether or not the plaintiff
sustained serious injuries
whereby he needs an operation.
5. Whether or not the plaintiff
opened the door and jumped out
of the moving vehicle.
6. Whether or not the plaintiff
and parents settled the matter
out of police action.
7. Whether or not the plaintiff
is entitled to his claim.
8. Whether or not the plaintiffs
action is frivolous and
vexatious and should be struck
out.
On the 10th September 1998, the
learned Circuit Judge entered
judgment in favour of the
plaintiff and made the following
awards:—
1. Pain and
suffering
¢1,000,000.00
2. Loss of amenities of
life
4,000,000.00
3. Loss of earnings at ¢100,000]
monthly for twelve
months]
¢1,200,000.00
4. Medical
Expenses
400,000.00
5. Police Report
1,500.00
6.
Costs
200,000.00
On the 23rd September, the
Defendants caused an Appeal to
be filed on their behalf which
contained the omnibus ground
“the judgment is against the
weight of the evidence”, and an
addendum to file additional
grounds.
The following additional grounds
of appeal have now been filed
namely:—
(a) The learned Circuit Judge
has failed totally to make any
findings of fact on the evidence
of the plaintiff that the
vehicle titled to his side and
the Driver (1st Defendant) and
Dw1 shifted to where he (the
Plaintiff) sat, neither did he
evaluate them.
(b) The learned trial Circuit
Judge’s evaluation of the
evidence was faulty and misled
him to reach a wrong conclusion
that the 1st Defendant was
negligent.
(c) The learned trial Circuit
Judge erred when he made an
award under the head loss of
Earnings”
Counsel for the
plaintiff/respondent in his
written submission raised an
interesting point of law.
He points out that there is no
record that Additional Grounds
of Appeal were filed. It is to
be noted that it is only in the
WRITTEN SUBMISSIONS that the
Appellants are adding what their
Counsel calls Additional
Grounds. This, he argues, is
not the proper way of bringing
in Additional Grounds of Appeal
and therefore they should not be
considered.
In response thereto, Counsel for
the Defendants/Appellants states
that under LI 218, the Court of
Appeal Rules 1962, there was no
requirement for written
submission, hence it was usual
to file additional grounds of
appeal on receipt of the Appeal
Record and at the hearing the
party would then seek leave of
the Court, before arguing the
Additional Grounds viva voce.
However, says Counsel, under the
new Court of Appeal Rules (CI
19) of 1997 as amended by CI 21
of 1998 where the Appellant is
enjoined to file a Written
Submission within 21 days of
being notified that the Appeal
Record has been transmitted to
the Court, it is obviously
impracticable to seek leave
before filing, let alone
arguing, any additional grounds
of appeal. This is the effect
of Rule 8(7) of CI 19. It
provides:
“The appellant shall not,
without leave of the Court urge
or be heard in support of any
ground of ground of objection
not mentioned in the Notice of
Appeal, but the Court may allow
the appellant to amend the
ground of appeal upon such terms
as the court may think of it.”
Counsel’s objections are well
founded. However, on this
occasion I do not think it would
be improper or unjust to
exercise the court’s powers
under Rule 63 of CI 19 (ie.
WAIVER OF NON-COMPLIANCE) since
the Respondent has already
answered the submissions.
Rule 63 states: when a Party to
any proceedings before the Court
fails to comply with these Rules
or with any terms of any order
for directions given or with any
Rule of Practice or Procedure
directed or determined by the
Court, the failure to comply
shall be a bar to the further
prosecution of proceedings
unless the court considers that
the non-compliance should be
waived”.
In the instant case I am
inclined to waive the non-
compliance since no injustice
would be suffered by the other
party. I am fortified in this
view by a number of authorities
including but not limited to the
case of Mumuni vs. Zakaria &
anor. 1992 1 GLR 208,
admittedly a High Court decision
but it is not irrelevant.
At all events, it may be
advisable, at the earliest
opportunity or at the first
hearing, to seek the appropriate
leave of the court not only as a
matter of good practice but also
as a matter of law, where
necessary, with regard to the
filing of additional grounds of
appeal before the relevant
written submission is filed to
comply with the requirements of
Rule 8(7).
In my view, the Court’s
discretion any power under Rule
63 should be exercised sparingly
in the supreme interest of the
administration of justice.
Having now waived the
Defendant/Appellant’s
non-compliance with Rule 8(7) I
now proceed to consider the
grounds of Appeal as a whole.
Counsel for the
Defendants/Appellants now argues
ground (a) and (b) together.
He submits that on the evidence
the vehicle was in good
condition until after the
accident.
The Plaintiff and the 1st
Defendant as well as Dw1 agreed
that the road was “sloppy and
rough” and the vehicle was
bumping in the course of the
journey.
Counsel for the appellant
further urges upon the court to
“take judicial notice of the
fact that during communal
labours it is common to motivate
the workers by providing them
with alcohol and other
drinkables which invariably
contain alcohol”. I must
confess there is a paucity of
direct authority on the point.
However in my view, although
such a practice is common it has
by no means acquired such
notoriety as to be accorded the
status of judicial notice. In
this case, even if counsel’s
submissions were to be accepted
there is no evidence that any
particular person or persons
including the parties were
drunk, and what part, if any,
the drinks played in causing the
accident. There is hardly any
supporting evidence in this
connection.
In any event, it was not pleaded
Counsel submits further that the
learned “trial judge woefully
failed to address his mind to
why the 1st Defendant and Dw1
did not fall, if the Plaintiff’s
story is true that the vehicle
tilted to one side and both 1st
Defendant and Dw1 shifted to
where he (the Plaintiff) sat”.
Counsel concedes that an
appellate Court will be slow to
interfere with findings of fact
unless the trial judge has drawn
wrong conclusions from the facts
proved or has not made any
definite findings of facts (see
for example the cases of:)
1. Reindof vs. Amadu 1962 1
GLR.
2. Reynard vs. Allan 1934 WACA
52 at 53.
The trial judge very ably
analysed the evidence of the
parties and came to the
conclusion that Plaintiff’s
evidence on the issue was to be
preferred. Indeed at page 36 of
the record, for example, he
makes the relevant specific
findings of fact, and adds. “I
find the Plaintiff’s evidence on
this issue as the truth. I
reject the Defendants evidence
on this issue as an after
thought ….. The Defendants
evidence that the plaintiff
opened the door and jumped out
of the tripper truck cannot be
true and I reject it. There is
sufficient evidence that on that
day the first Defendant drove
the tripper truck negligently
and so brought the accident into
fruition. Refer to POPVIC vs.
DERK 1961 VR 413 at 422 AC
“Matter which otherwise might be
ambiguous and coloured could be
rendered suspicious and
corroborative by reason of false
denial…..”.
The issues in this case are
essentially issues of fact. In
view of the basic findings of
fact I am unable to disturb the
judgment in this case.
I will now turn to ground © of
the additional grounds which
reads:—
“The learned trial judge erred
when he made an award under the
head “Loss of Earnings”. Counsel
for the appellant argues that
two years before the accident
the Plaintiff had stopped
driving. There is also no
evidence that he was earning
anything. His Driving licence
had expired. Counsel submits
that there is, therefore, no
justification for the judge to
award anything to him under this
head.
In the light of those facts I
think the learned trial judge
was right in denying the
Plaintiff’s claim to loss of
earnings from the date of the
accident in 1995 to date.
Be that as it may, the medical
evidence shows that his
incapacity is such that he would
be unable to work for a
considerable length of time. It
cannot be said with any degree
of seriousness that but for the
accident he would never have
been able to obtain any
employment.
In my judgment, the Plaintiff
deserves some award for loss of
future earnings. But the
question is on what basis. Since
his driving licence had
apparently expired for two years
before the accident and the
Plaintiff had stopped driving,
it cannot be contended that he
had any immediate prospect of
being employed as a driver.
It is therefore my view that the
Plaintiff would be entitled to
the current minimum daily wage
for a period of twelve months
from the date of judgment. It
is hoped he would be well enough
to pursue some calling or trade
or business. The award under
head 3 of ¢100,000 per month for
12 months is set aside. The
current daily minimum wage for
12 months from the date of
judgment is substituted
therefor.
Subject to that, the appeal is
dismissed. For the avoidance of
doubt I confirm the other awards
made by the learned trial judge
in favour of the
Plaintiff/Respondents under the
six different heads as
enumerated above.
The appeal is dismissed
accordingly.
P. K. OWUSU-ANSAH
JUSTICE OF APPEAL.
BENIN, JA.:
I agree
A. A. BENIN
JUSTICE OF APPEAL
TWUMASI, JA.:
I also agree
P. K. TWUMASI
JUSTICE OF APPEAL
COUNSEL
MR. A. NORVOR FOR THE PLAINTIFF
MR. K. HEWARD-MILLS FOR THE
REFENDANT. |
