SAED vs. ABDULAI AND ANOTHER [1988]DLHC2314

Date	1988-04-11
Suit No.
Citation No.	[1988]DLHC2314

BENIN J.

KORBIEH FOR THE PLAINTIFF.

DOMALAE FOR THE DEFENDANTS.

[1988]DLHC2314
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													<main id="main" class="content" style="min-height: 60rem" >SAED<o:p></o:p>vs.<o:p></o:p>ABDULAI
AND ANOTHER<o:p></o:p>[HIGH
COURT, TAMALE]<o:p></o:p>[1991] 1
GLR 371<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

<p class="MsoNormal" align="right" style="margin-bottom:5.0pt;text-align:right;
mso-pagination:none;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">Date: 11 APRIL 1988<o:p></o:p>

</div>COUNSEL:<o:p></o:p>KORBIEH
FOR THE PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DOMALAE
FOR THE DEFENDANTS. <o:p></o:p>

</div>JUDGMENT
OF BENIN J.<o:p></o:p>The
plaintiff’s claim is for:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“General
and special damages from the first and second defendants jointly and severally
for the total loss of the plaintiff’s brand new Datsun saloon car which loss
was caused by the negligence of the first defendant whilst driving the second
defendant’s Peugeot car in the course of his employment as servant or agent or
both of the second defendant.”<o:p></o:p>Following
the accident and after police investigations, the first defendant was charged
with some criminal offences arising out of the accident and put before a
district court which found him guilty and sentenced him to a fine. This led
counsel for the plaintiff in his address to make the following submission:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
plaintiff’s evidence is again corroborated by the police report, exhibit D,
which was tendered without dissent. Even though one might say that the
narration of brief facts of the case is a matter of opinion, the conduct of the
police leading to the conviction of the defendant in a criminal court (where
the burden of proof is much higher than in a civil court) substantially adds to
the plaintiff’s allegation of negligence on the part of the first defendant. If
it is assumed that in performing their normal duties the police always do the
right thing (applying the omnia praesumuntur rule), it must be the presumption
that if the accident had been caused by or contributed to by the driver of
vehicle No. ASA 2257 then he rather than the first defendant ought to have been
charged before the criminal court. The defendants have made no attempt to rebut
this presumption.”<o:p></o:p>This
submission raises a number of quite interesting issues, namely: (i) the effect
of the criminal trial on the claim for negligence in a civil court, and (ii)
the weight to be attached to police reports on an accident.<o:p></o:p>Before I
deal with these issues let me state the reply the learned counsel for the
defendants has to these submissions. Counsel stated and I quote:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“...
learned counsel’s reference to the first defendant’s conviction in a criminal
trial in this matter is most unfair as this was not pleaded by the plaintiff.
Even if the plaintiff had pleaded it, it is still my humble submission that
there is no presumption that the facts essential to the judgment pronounced by
the court in the criminal matter have been correctly decided. Refer to section
50 of the Evidence Decree, 1975 (N.R.C.D. 323). Furthermore, when the police
chose to charge the first defendant for negligence instead of the plaintiff ...
it was a matter of opinion, pure and simple. If it were not so, mere arrests of
suspected criminals by the police would for that matter be an irrebuttable
presumption of guilt requiring no trial.”<o:p></o:p>On the
effect of the criminal trial on a claim of negligence in a civil action, three
different aspects of the matter may be considered. First, the admissibility and
effect of the evidence in the criminal proceedings. Secondly, the effect of a
plea of guilty, and finally the effect of a conviction on a plea of not guilty.
On the proceedings, those can be admitted to discredit the evidence of the
witness. It cannot however be admitted as evidence of facts and from it draw
inferences in support of the case of either of the parties. That was the
decision of the full bench of the Court of Appeal in the case of Nelson v.
Klutse, Court of Appeal (full bench), 8 September 1969, unreported; digested in
(1969) C.C. 142.<o:p></o:p>On the
effect of a plea of guilty, the authorities are quite conflicting. There are
those who believe that where a person pleads guilty to a criminal charge and is
convicted, the record of judgment upon his plea is admissible against him in a
civil suit as a solemn judicial confession: see cases like Dwira v. Ocansey
[1963] 1 G.L.R. 268 and Atsyor v. Donkor [1980] G.L.R. 273. On the other hand
there are those who hold the view that the defendant’s plea of guilty in the
criminal court was not conclusive proof of his negligence, and that the civil
court could, upon explanation from the defendant, hold that he did not intend
to admit negligence: see Aruba v. Aboagye [1966] G.L.R. 385 and Berfi v. Owusu
[1966] G.L.R. 583. Though this case has not turned up on this issue since the
first defendant did not plead guilty at the criminal trial, I think it is
worthwhile to state an opinion on it. First, the standard of proof required in
the criminal and civil trials is entirely different. Secondly, the consequences
of a criminal action are dissimilar to those of a civil action. Thus whilst a
defendant ma</main>