HAMMOND vs. AMUAH AND ANOTHER [1989]DLHC2250

Date	1989-01-18
Suit No.
Citation No.	[1989]DLHC2250

BROBBEY J.

G. C. BROWN FOR THE PLAINTIFF.

P. C. ASUMADU-MENSAH FOR THE DEFENDANT.

[1989]DLHC2250
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													<main id="main" class="content" style="min-height: 60rem" >HAMMOND<o:p></o:p>vs.<o:p></o:p>AMUAH
AND ANOTHER<o:p></o:p>[HIGH
COURT, ACCRA]<o:p></o:p>[1991] 1
GLR 89<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: 18 JANUARY 1989<o:p></o:p>

</div>COUNSEL:<o:p></o:p>G. C.
BROWN 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">

P. C.
ASUMADU-MENSAH FOR THE DEFENDANT. <o:p></o:p>

</div>JUDGMENT
OF BROBBEY J.<o:p></o:p>By his
writ of summons the plaintiff claimed: ¢350,000 being the cost of his Opel
Reckord saloon car registered as GS 9036; damages for loss of use of the said
vehicle at ¢300 per day from 4 April 1982 to the date of judgment and interest
on the amount due at the current rate of interest. The plaintiff’s case is that
he owned the said Opel car. He drove it on the Accra-Winneba Road on 2 April
1982. At a point near the Densu River he saw some vehicles parked by the bridge
over the river. At the same time he sighted an on-coming vehicle being driven
from the opposite direction. He therefore brought his car to a stop behind the
other parked vehicles. A bus then being driven from his rear attempted to
overtake his car. In the process the bus collided with the on-coming vehicle
and crashed into his stationary Opel car.<o:p></o:p>According
to the plaintiff, the car was damaged beyond economic repair. He averred that
he was a farmer and he used that car on his farming business. Having lost the
use of the car he resorted to other means of moving about in connection with
his business which cost him ¢300 per day. Hence his claim for the reliefs set
out in his writ which I have outlined already. At the end of the plaintiff’s case,
counsel for the defendants conceded that the defence would not dispute
liability for the accident. It was part of the case of the plaintiff that the
bus in question belonged to the second defendant-company and was being driven
at the time of the accident by the first defendant, an employee of the second
defendant, in the course of his employment. The first defendant who drove the
bus is therefore found liable for the accident. The second defendant-company as
owners of the bus are also held vicariously liable for the negligent driving of
the first defendant. For their negligence, the two defendants are jointly and
severally liable in damages to the plaintiff. The only bone of contention
between the parties is the quantum of damages to be awarded the plaintiff.<o:p></o:p>The
plaintiff claimed that he bought the car in 1981 at the cost of ¢350,000.
Throughout the cross-examination of his evidence no specific question was put
to the plaintiff to challenge him on the value he placed on the car. He
conceded that he bought the car as a second-hand vehicle and that it was first
registered in 1974 but questions relating to these points did not mean that the
defence disputed the value placed on the car. The cross-examination was
completely silent on the claim for the ¢300. In effect, nowhere in the trial
was it suggested to the plaintiff that his car did not cost ¢350,000 or that he
did not spend ¢300 per day on transportation.<o:p></o:p>The law
is quite well settled that where a party makes an averment and that averment is
not denied no issue is joined and no evidence need be led on that averment.
Similarly when a party has given evidence of a material fact and is not
cross-examined upon it, he need not call further evidence of that fact: see
Fori v. Ayirebi [1966] G.L.R. 627, S.C. Indeed, it was also held in the case of
Quagraine v. Adams [1981] G.L.R. 599, C.A., that where a party makes an
averment and his opponent fails to cross-examine on it, the opponent will be
deemed to have acknowledged, sub silentio, that averment by failure to
cross-examine. On these authorities, failure by the defence to cross-examine
the plaintiff on the ¢350,000 and the ¢300 amounts to admission by the defence
of those sums and therefore the plaintiff did not have to lead further evidence
on them.<o:p></o:p>The only
occasion when the defence sought to challenge the figures were in the written
addresses submitted by counsel for the two defendants. But that was not merely
belated but was not legally permissible. The law is that it is improper for
counsel to address on matters in respect of which no evidence was led in the
trial, such as the challenge of those figures which is speculative and
untenable, and the trial court is not entitled to consider matters if raised
for the first time in addresses: see C.F.A.O. v. Archibold [1964] G.L.R. 718,
S.C. In State Fishing Corporation v. Fynn, Court of Appeal, 4 April 1984;
digested in [1984-86] G.L.R.D. 3, where no evidence was led on a specific rate
of interest until final addresses, the Court of Appeal held that counsel’s
address could not be substituted for evidence. The challenge of counsel in his
address could not therefore be substituted for what should have been led in the
course of the trial. These principles, to my mind, make much sense because if
the plaintiff were challenged in the course of the trial he might have been put
on his guard to lead further evidence in substantiation of the figures. Where
he is not challenged, he is entitled to take it that what he said had been
accepted and so he did not need to belabour the point by adducing more
evidence.<o:p></o:p>To raise
the challenge for the first time in an address produces two effects: Firstly,
the plaintiff could rightly claim to have been misled by the conduct of the
defence into thinking that what he said had not been challenged; and secondly,
even if the plaintiff were minded to lead further evidence, he could not at
that stage do so because the trial had been concluded. There is therefore sound
justification for the policy of the law in disallowing such belated points
raised in ad</main>