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JUDGMENT
GBADEGBE JSC:
This is an appeal from the
judgment of the Court of Appeal
that reversed in part the
decision of the trial High Court
in the matter herein. The facts
on which this action has been
contested in the various courts
may be stated briefly as
follows. The 1st
defendant, a financial
institution engaged in the
business of banking on or
about 2nd May 2008
obtained judgment against the
plaintiff in suit number
AB/56/2008 and subsequently
enforced the said judgment by a
writ of fifa directed at
the property of the plaintiff
situate at Kpone near Tema. The
evidence proffered by the
plaintiff is to the effect that
its factory premises situate at
Kpone was subsequently sealed
off by officials from the High
Court, Accra and its workers
driven out of the premises.
According to the plaintiff
following the attachment, the 1stdefendant
engaged the services of the 2nd
defendant, a private security
company to keep watch over the
property. The evidence also
reveals that on 27th
October 2009, PW1, the Managing
Director of the plaintiff
company received word from an
informant through the Chief
security Officer of the
plaintiff company that some
people were seen removing
certain items from the premises
of the plaintiff company, which
had earlier on been attached by
a writ of fifa.
The plaintiff’s representative
testified that following the
information he received from his
head of security, he lodged a
complaint with the police and
that subsequently two persons
were arrested in connection with
the removal of the items from
the factory premises.
Unfortunately, so the evidence
portrays, the two who were
arrested were employees of the 2nd
defendant, a company that was
engaged to protect the factory
premises by the 1st
defendant and indeed, from the
testimony of the police officer
who was responsible for the
investigations, one of them was
actually engaged in escorting
the purchaser of the items that
were asported from the premises
while the items were being taken
away on a vehicle. It was
further alleged that based upon
the investigations, there was a
criminal case pending against
the two security personnel
employed by the 2nd
defendant.
On these facts, the plaintiff
company instructed its
solicitors to take out the writ
of summons herein against the
defendants jointly and severally
claiming:
(i)
Order for the refund of the
current cost of 1,708 pieces of
various assorted items stolen
and missing under the control
and custody of the officials of
Defendants from the attached
factory of the Plaintiff at Tema
valued at GH¢ 2, 280, 000.
(ii)
Loss of earnings caused to
plaintiff since July, 2009 to
the present for six days a week
from illegal and unlawful
sealing of the factory of
plaintiff at Tema thereby
preventing them from carrying
out their lawful activities.
(iii)
General Damages.
(iv)
Costs.
After a full scale trial of the
action by the trial court,
judgment was entered in favour
of the plaintiff for general
damages in the sum of GH¢ 300,
0000.00 with the other reliefs
being dismissed by the learned
trial judge for reasons that
were contained in his judgment.
This determination appeared not
to have found favour with either
the plaintiff or the defendants
who lodged appeals to the Court
of Appeal. The Court of Appeal
in its judgment dated 20th
December 2012 dismissed the
appeal of the defendants in its
entirety and allowed the
plaintiff’s appeal in part by
granting in its favour by way of
loss of earnings as formulated
in relief (1) of the indorsement
to the writ of summons herein in
a sum that was not computed but
expressed by the utilisation of
a multiplier in the sum of five
thousand cedis from 29th
July 2009 per day for six days
in a week to date of judgment.
The defendants claiming to have
been aggrieved by the delivery
of the Court of Appeal has
further appealed to us seeking a
variation on grounds contained
the notice of appeal filed on 15th
February 2013.
It seems to us after a careful
consideration of the record of
appeal and the respective
written briefs of the parties
that the questions we have to
determine in the matter herein
concern the award of damages for
loss of earnings and that
expressed by way of general
damages. So stated, the
questions posed for our decision
substantially is whether in
making these awards the
learned justices of the Court of
Appeal applied the right
principles. And closely linked
with that would be if the
correct principles were applied,
were the damages awarded under
both heads appropriate? In
regard to the task with which we
are faced as outlined above, we
commence with the loss of
earnings.
In our view as the attachment
was carried out at the instance
of the Sheriff of the High
Court, no liability attaches to
either defendant by virtue only
of the attachment. In their
view, however, the leaned
justices thought that the
execution was directed bythe1stdefendant
and not the Registrar of the
Court of Appeal. The conduct of
the 1st defendant did
not add to or derogate from the
responsibility of the Registrar
at law and was not sufficient to
ground liability in the 1st
defendant on the mere ground
that the 2nd
defendant was brought on to the
land by the 1stdefendant
to keep other persons away from
the property. With the
attachment, the property was
placed in custody of the law for
the benefit of those entitled
thereto with a special property
to the goods being in the
sheriff; a right that enables
him to maintain an action for
trespass or conversion against
any person who takes them away .
See: (1)Union Bank of London
v Lennanton (1878) 3 CPD
243.(2) Wilbraham v
Snow (1670) 2 Wms Saund 47.
From the judgment on appeal to
us in these proceedings, the
learned justices of the Court of
Appeal thought otherwise and
concluded that by assuming
responsibility for the security
of the property the 1st
defendant was interfering with
the work of the Registrar.
Accordingly, the wrongdoing of
its agent the 2nd
defendant being the cause of
action in the matter herein must
be attributed to it. But at law,
the position arising from the
attachment continued to be as
stated a little while ago and
cannot be transformed in a
manner that will have legal
consequences such as to fix it
with vicarious liability for the
wrong of the 2nd
defendant. This aside, we think
that although the 1st
defendant had engaged the 2nd
defendant to keep watch over the
attached property that did not
create a liability in it for any
wrong occasioned by the tort of
the security company. The
authorities are settled that the
mere engagement by one person of
another to render services for
him without more is not
sufficient to make him
vicariously liable for his
tortious acts. In determining
whether an employer should be
fixed with vicariously liability
for the acts of an employee, the
court should not only look at
the question whether the
wrongdoer is an employee of the
other but take into account
other relevant factors as was
correctly expounded by Wood JA
(as she then was) in the
unreported judgment of the Court
of Appeal of 30th May
2002 in Civil Appeal Number
193/2000 entitled: Bernard
Kojo Mensah &Another v Bilton
Bogoso Gold Limited. The
approach outlined in that
decision is preferable to the
approach by the court below that
seemed to look simply at the
outward trapping of the
relationship between the parties
and we are of the opinion that
if the learned justices had
correctly approached the matter,
they would have come to a
different conclusion regarding
the liability of the 1st
defendant for the acts of the 2nd
defendant.
Further, we think that from the
admitted evidence, the 2nddefendant
cannot be said to be a servant
of the 1stdefendant
but was an independent
contractor engaged to provide
services to the latter. It being
so, on the authorities, the 1st
defendant cannot be vicariously
liable for wrongs committed by
the Security Company and or its
employees. See: Tinseltine v
Robert, Davies, Derbyshire
County Council, Welsh Assembly
Government [2011] EWHC 1199.
This is not to say that the 2nd
defendant for that matter is
liable for the loss of earnings.
As said earlier, the seizure was
an act of the Sheriff for which
at law none of the defendants is
legally answerable. We have
accordingly come to the view
that on this head of damage, the
award was in error and proceed
to set it aside.
We observe generally regarding
the claim to loss of earnings
that after having accepted the
seizure of the factory premises
without making any effort to
seek relief from it or to have
the processes of execution
suspended on any ground, the
plaintiff cannot be heard
saying that by the attachment he
had suffered loss of earnings.
See: Lewis v Gompertz
(1837 Will & Woll& Dav 592); 21
Digest (Repl) 552. Indeed, if
the position were to be as
contended by the plaintiff the
remedy of attachment would never
have been a creature of the law.
On the contrary, it serves the
purpose of ensuring that those
who obtain judgment from our
courts in cases that demand
payment of money are able to
realise the fruits of their
judgments and renders the
judgment effective.
Then there remains the award of
general damages. In the Court of
Appeal, the said head of damages
was allowed in respect of the
evidence that tended to show
that the factory premises was
broken into while under
attachment by persons with the
connivance of two employees of
the 2nd defendant.
The claim for the value of items
alleged to have been removed
following the said act having
been found by the trial court to
be unreliable and not worthy of
credit, that award was made to
cater for general damages. This
was contested on appeal by the
defendants who argued that
having regard to the
circumstances, it should be
nominal in nature but the
learned justices of the Court of
Appeal rejected that view and
came to the opinion that the
award was justifiable having
regard to the value of the items
that was indorsed in relief 1 of
the indorsement to the writ of
summons herein. In reaching
their decision, the learned
justices relied on the decision
of this court in Delmas
Agency Ghana Limited v Food
Distribution International
Limited [2007-2008] 2SCGLR
748 by which the plaintiff’s
claim for special damages
(substantial damages) in the sum
of US$200,000 was rejected a
nominal award in the sum of
US$25, 000 or its equivalent in
cedis was made. While it is
correct to say that in the said
case nominal damages
representing one-eighth of the
amount claimed as special
damages was by the Supreme Court
that decision standing alone
cannot be an authority for the
proposition that in all cases
where special damages fails an
award of general damages that
look not nominal in nature is
justified. On the contrary, the
learning is that the award of
damages though regulated by
settled principles like all acts
of judicial discretion must be
applied on case by case basis.
Examining the evidence in the
case before us, it is clear that
the plaintiff exaggerated the
extent of items removed from the
factory premises and presented
the court with a version that
was unreliable as was found of
its exhibit B. We think that on
the whole in the absence of
cogent evidence of the materials
taken by those who broke into
the factory premises such as
reference to inventory, which
to be good cannot be limited
only to that of July 2009 as
there must be credible evidence
of the machinery holding of the
company over a period to
establish the reasonable
probability that in the light
of those inventories, as at
the date of the attachment the
extent of loss claimed to have
been suffered by the plaintiff
was more likely to be true. We
think this is the burden that
the plaintiff assumed having
regard to the pleadings filed on
its behalf; a burden which
unfortunately was undischarged
at the end of the trial. In the
circumstances, we are of the
view that the items alleged to
be missing or removed were
exaggerated and accordingly
scale the award of GH¢300,
000.00 down to an amount of GH¢100,
000.00.As said earlier of the
consequence of the 2nd
defendant’s conduct, the 1st
defendant cannot be fixed with
vicarious liability for the said
wrong. The said wrong is
personal to those who unlawfully
entered the property to which
notwithstanding the subsistence
of the attachment, the execution
debtor (judgment debtor) has a
general property in the goods.
See: Re Clarke [1898] 1
Ch 336 Clark, 339. In the
premises, the award made in
favour of the plaintiff against
the defendants by the High Court
that was affirmed by the Court
of Appeal was wrong and properly
belongs only to the 2nd
defendant. We do not think that
on the established facts, a
security company that is engaged
to keep surveillance over
property for reward can have the
employer saddled with tortious
liability for deliberate acts of
theft by persons who are engaged
to protect the very property
that they broke into. To fix the
1st defendant with
liability will be to relieve the
2nd defendant from
the performance of its
fundamental obligation under the
contract to provide security
services.
For these reasons, the appeal of
the defendants succeeds in part
only by setting aside the award
of damages for loss of earnings
made jointly and severally
against them by the Court of
Appeal and also by the
substitution of an award of GH¢
100, 000.00 in place of GH¢300,
000.00 against the 2nd
defendant only for general
damages.
(SGD)
N. S. GBADEGBE
JUSTICE OF THE SUPREME COURT
(SGD) J. ANSAH
JUSTICE OF THE SUPREME COURT
(SGD)
R. C. OWUSU (MS)
JUSTICE OF THE SUPREME COURT
(SGD) J. V. M.
DOTSE
JUSTICE OF THE SUPREME
COURT
(SGD)
J. B. AKAMBA
JUSTICE OF THE SUPREME
COURT
COUNSEL
BRIGHT AGYEKUM ESQ. FOR THE 1ST
DEFENDANT/APPELLANT
RESPONDENT/APPELLANT.
RICHARD NUMBO SAAKA ESQ. FOR
THE 2ND DEFENDANT
/APPELLANTS/ RESPONDENT/
APPELLANT.
RICHARD AMOFA ESQ. FOR THE
PLAINTIFF /APPELLANTS/
RESPONDENT/RESPONDENT.
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