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JUDGMENT
H. ABBAN (MRS.)
This is a unanimous decision of
the Court.
The appeal before the Court
arises out of the judgment of
his Lordship Apaloo R. K.
sitting at the High Court, Accra
and delivered on the 10th day of
May 2002. The judgment went in
favour of the
Plaintiff/Respondent
(hereinafter referred to simply
as the Respondent). The
defendant/Appellant who will
also be referred to henceforth
in this judgment as simply the
Appellant, being dissatisfied
with the judgment has appealed
to this Court against the said
judgment.
The appellant stated five
grounds of appeal filed pursuant
to leave granted for the appeal
to be lodged out of time.
Counsel for the Appellant has
decided in his wisdom to argue
together the 1st and 5th grounds
of appeal.
These are:—
“a - The ruling is totally at
variance with the totality of
evidence adduced at the trial;"
and
“e - The judge made findings of
fact that were contradictory and
not supported by any evidence on
record.”
According to Counsel for the
Appellant, the fact that the
judge found that the defendant
“assaulted and battered the
plaintiff at the Fusion Night
Club that evening” contradicts
his other finding that “at about
1.00 a.m. on 22/5/98 there was a
scuffle between the parties at
the Fusion Night Club.” Counsel
argues that this “scuffle” was
amply corroborated by PW1 who
was present at the club. His
line of argument is that if the
trial judge is certain that
there was a scuffle between the
appellant and the Respondent,
then the party who was worse off
cannot succeed in an action
against the other party simply
because he was worse off in the
scuffle.
His second ground of appeal is
that the learned trial judge
erred in granting special
damages that had not
specifically been endorsed on
the writ of summons and had not
been proved by the Respondent.
Counsel’s argument is that in
the law of tort, there is a
distinction between general and
special damages and that one of
the distinctions is in the area
of pleadings. He supported this
submission with the Susque Lava
case [1926] A.C. 665 where Lord
Dunedin stated at page 661 as
follows: “If there be any
special damage which is
attributable to the wrongful act
that special damage must be
averred it must be averred that
such damage has been suffered
but the quantification is a jury
question.”
Though Counsel argued at length
about the award of damages, both
general and special, he finally
conceded that if the court is
inclined to affirm the judgment
of the court below and to uphold
the damages awarded, the Court
must award only nominal damages
in the absence of proof of
consequential damages suffered
by the Respondent.
The appellant therefore prays
this Court to set aside the
award made at the Court below
and in its stead make a nominal
award in favour of the
Respondent.
The facts of this case are that
on the night of 22nd May 1998 at
about 1.00 a.m., the Appellant
and the Respondent who were then
at the Fusion Night Club, Osu
were involved in a scuffle. How
did the scuffle start? According
to the Respondent, he was seated
at a table in the night club
with some friends since that
date happened to be his 24th
birthday and they were
celebrating same, when without
any provocation from Respondent
the Appellant approached their
table and asked him to choose a
leg to be broken whilst
insulting him and his family.
Respondent had then returned
from France where he had just
had a knee surgery from which he
was still recovering and he was
therefore using crutches. The
Appellant then slapped the
Respondent and he was about to
“punch” the operated knee when
the Respondent held his
(Appellant’s) wrist.
From the foregoing account which
was amply supported by the PW1
(Ali Kwame Maoux) whose
evidence-in-chief was to the
effect that he saw the Appellant
attack the Respondent who was
then seated on a bench without
any provocation from the latter.
This piece of evidence was not
discredited under
cross-examination nor was any
other evidence led through
another defence witness to
contradict same.
Thus it stands on the records
that a battery or “an unwanted
physical contact of his person
which constitutes the tort of
battery” took place on the
Respondent on the night of the
22/5/98.
In the case of Cole vrs. Turner
{1706} 6 Mod. 149, Holt C.J.
stated that the least “touching
of another in anger is a
battery;” and this is still the
law. In the law of battery there
is no requirement to prove that
the contact caused or threatened
to cause any physical injury or
harm. Thus in the case of Wilson
vrs. Pringle [1986] 2 AER 440 at
page 495 C.A., it was held that
“an intention to injure is not
essential to an action for
trespass to the person which is
the offence.”
Therefore the culpable touching
may take several forms subject
to the Rule that the contact
must be direct.
The principle in awarding
damages is to compensate the
“Plaintiff” for the losses
pecuniary and non-pecuniary
which he had sustained as a
result of the “Defendant’s” tort
– more specifically the
assessment process is said to
aim at restitutio in integrum.
Here we cite the oft-quoted
words of Lord Blackburn that
“the Court should award that sum
of money which will put the
party who has been injured or
who has suffered in the same
position as he would have been
in if he had not suffered the
wrong for which he is now
getting his compensation or
reparation.”
The loss for which the Plaintiff
claims compensation must be
caused by and must not be too
remote a consequence of the
defendants tort. Thus in the
case before us, the Appellant
must reasonably have foreseen
that his conduct would aggravate
the Respondent’s injury since he
knew or should have known that
the Respondent was not
physically sound considering
that he was using crutches.
In our opinion we think the
learned trial judge was right in
coming to the conclusion he did
in finding that it was the
Appellant who “left his seat,
advanced on the Plaintiff,
slapped him” and when the
Respondent tried to escape,
“pursued him, punching his feet
and leg.” Again the fact that
the Respondent was using
crutches and had had an
operation on his knee in France
was also not disputed.
The cases of Rookes vrs. Barnavd
{1964} A.C. 1129, 1221 – 1233
and Broome vrs. Cassel & Co.
Ltd. {1972} A. C. 102 both
support the legal principles
that the time, place and manner
of the trespass and the conduct
of the Defendant may be taken
into account and the Court may
award aggravated damages on
these grounds.
This Court therefore does not
intend to interfere with the
findings of fact by the learned
trial judge at the Court below.
In view of the principle stated
in the two cases just cited
supra, we affirm that though it
was not the physical assault by
the Appellant which caused
Defendant’s original injury to
his knee; after the trespass to
his person, the doctors
recommended that he goes back to
France for some laboratory tests
to be done to assess any fresh
damages which may have been done
to the knee due to Appellant’s
conduct.
Counsel for Appellant seriously
is not contending that there has
been a battery committed on
Respondent by the Appellant. His
only serious contention is that
the damages awarded is excessive
having regard to the entirety of
the claim made by the Respondent
by way of general damages.
Following the decisions in the
cases of Rookes vrs. Bernard and
Broom vrs. Cassell and Co. Ltd.;
we are of the opinion that this
is not a case where nominal
damages must be awarded. We are
also of the opinion that the
legal axiom “you take your
victim as you find him applies
here.”
We therefore dismiss this
appeal, affirm the judgment and
damages awarded at the Court
below.
Costs of ¢5 million awarded the
Respondent as against the
Appellant.
(SGD)
HENRIETTA ABBAN (MRS.)
JUSTICE OF APPEAL
I agree
JULIUS ANSAH
JUSTICE OF APPEAL
I also agree
J. B. AKAMBA
JUSTICE OF APPEAL |
