<p class="mb-5" id="contentDlCitation" hidden>[1992]DLCA4290</p> <div class="restriction-wrapper"> <div class="container-lg"> <div class="row"> <div class="col-md-12 restricted-content"> <div class="restricted-content-img-wrapper"> <div class="lock-icon bounce-7"> <img class="" src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png" alt="Subscription based content"> </div> </div> <a href="https://www.dennislawgh.com/login" class="btn btn-primary btn-lg" style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> Login to Read Full Case </a> </div> </div> </div> </div> <main id="main" class="content" style="min-height: 60rem" ><span style="font-size: 18px !important;"><p class="MsoNormal" align="center" style="text-align:center"><b><span style="font-size:12.0pt;line-height:107%;font-family:"Book Antiqua","serif"; color:#00B0F0">TWIM AND ANOTHER<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center"><b><span style="font-size:12.0pt;line-height:107%;font-family:"Book Antiqua","serif"; color:#00B0F0">vs.<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center"><b><span style="font-size:12.0pt;line-height:107%;font-family:"Book Antiqua","serif"; color:#00B0F0">BARNES<o:p></o:p></span></b></p><p class="MsoNormal" align="center" style="text-align:center"><span style="font-size:10.0pt;line-height:107%;font-family:"Book Antiqua","serif"">[COURT OF APPEAL]<o:p></o:p></span></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="center" style="text-align:center;border:none; mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:10.0pt;line-height:107%;font-family:"Book Antiqua","serif"">[1993 - 4] 1 GBR 382 – 387 DATE: 18 JUNE 1992<o:p></o:p></span></p> </div><p class="MsoNormal" style="text-align:justify"><b><span style="font-size:12.0pt;line-height:107%;font-family:"Book Antiqua","serif"">COUNSEL:<o:p></o:p></span></b></p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt; line-height:107%;font-family:"Book Antiqua","serif"">BOADU FOR THE APPELLANTS.<o:p></o:p></span></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" style="text-align:justify;border:none;mso-border-bottom-alt: solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:12.0pt;line-height:107%;font-family:"Book Antiqua","serif"">HAMMOND FOR THE RESPONDENT.<o:p></o:p></span></p> </div><p class="MsoNormal" style="text-align:justify"><b><span style="font-size:12.0pt;line-height:107%;font-family:"Book Antiqua","serif"">CORAM:<o:p></o:p></span></b></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" style="text-align:justify;border:none;mso-border-bottom-alt: solid windowtext 1.5pt;padding:0in;mso-padding-alt:0in 0in 1.0pt 0in"><span style="font-size:12.0pt;line-height:107%;font-family:"Book Antiqua","serif"">ESSIEM JA, ADJABENG JA, LUTTERODT JA<o:p></o:p></span></p> </div><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt; line-height:107%;font-family:"Book Antiqua","serif"">LUTTERODT JA. On the 19th of April 1986, the first appellant ran a City Express Services Tata bus GV 5710 he was driving into the respondent’s taxi cab. The latter therefore caused his solicitors to issue a writ against not only the actual tortfeasor, that is the first appellant, but his masters the owners of the vehicle, the second appellants, who in law are vicariously liable for all torts committed by their servant in the course of his employment. Because the vehicle became a total wreck, he sought damages for the pre-accident value of the vehicle which he himself set at ¢180,000. He also asked for general damages for loss of use at ¢3,000 per diem calculable from the date of the accident to the date of judgment.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt; line-height:107%;font-family:"Book Antiqua","serif"">The judgment delivered on 14th June 1988 went in favour of the respondent who was awarded the sum of ¢220,000 as damages for the pre-accident value of the vehicle, as well as ¢2,000 per diem for loss of use for a six-day week and which was to be calculated from the date of the issue of the writ to the date of judgment.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt; line-height:107%;font-family:"Book Antiqua","serif"">This did not please the appellants and so they caused their solicitors to file a notice of appeal setting forth two grounds of appeal. Both of them related to the quantum of damages awarded. This appeal turned on only two original grounds. Consequently, at the hearing, they did not, as is clearly borne out by the grounds of appeal, challenge the learned judge’s findings on the issue of liability. Their quarrel lay with the quantum of damages awarded. Firstly then, it was urged on behalf of the respondent that when by his own endorsement he had stated the pre-accident value of the damaged chattel as ¢180,000, the court ought not suo motu to have awarded him the sum of ¢220,000 for the purpose.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt; line-height:107%;font-family:"Book Antiqua","serif"">The respondent’s counsel in defence of the learned trial judge’s stand, referred us to Borkloe v Nogbedzi [1982-83] GLR 1103 and urged that it was perfectly legitimate for the trial judge to have increased the sum claimed by the innocent party as the value of his damaged property.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt; line-height:107%;font-family:"Book Antiqua","serif"">It is not open, as a matter of course, to an appellate court to interfere with a trial judge’s assessment of damages. The circumstances under which an appellate court could disturb such assessments and so vary them has been clearly spelt out in a number of cases, the most well-known being the following: Karam v Ashkar [1963] 1 GLR 138, Bressah v Asante [1965] GLR 117; Ballmoos v Mensah [1984-86] 1 GLR 725, Hayfron v Egyir [1984-86] 1 GLR 682. Thus an appellate court would do so where the court acted upon wrong principles of law, where the court misapprehended the facts in issue or where the court made an erroneous estimate of the amount to be awarded.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt; line-height:107%;font-family:"Book Antiqua","serif"">In his ruling, the learned trial judge found that the evidence before him established the pre-accident value of the car at ¢180,000. But in spite of the positive finding of fact he went on to say that “considering the inflationary value of the cedi and supply and demand in the market, I am of the view that ¢220,000 will be reasonable”. We will find then that he justified this “unilateral” increase to ¢220,000 which is some ¢40,000 more than the plaintiff himself has asked for, on the following grounds: inflationary value of the cedi and demand in the market.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt; line-height:107%;font-family:"Book Antiqua","serif"">The question which has agitated my mind is, was he right in doing so or had he, in making the award, applied wrong principles of law? I have read the full judgment of the Court of Appeal’s decision in the case of Borkloe v Nogbedzi [1982-83] GLR 1103. It is true the trial judge in assessing damages did not merely rely on the actual pre-accident market value of the chattel but took into consideration such matters as inflationary trends and other market forces. He felt these would operate to increase cost. The appellate court commended his approach and so refused to vary the award he made and which was certainly higher than the pre-accident market value of the damaged chattel. But we will find that the Borkloe case never laid down any inflexible rule of law, namely that in the assessment of damages in actions for damage to chattels, the courts must take into account such matters like inflation and other market forces like the unavailability of the chattel concerned on the market. The decision went that way because the evidence clearly showed that the company which usually produces the type of goods which were damaged had been out of production for some three years before the accident and had no materials to produce a similar tanker for the victim of the tort. In other words, that similar tanker was unobtainable on the market. That is why the learned justices of appeal referred in their judgment to this portion of the trial judge’s judgment “it is true that the pre-accident market value of a chattel affords a guide to the measure of compensation when and only when a similar chattel can be obtained in the open market”. It follows that it is not in all cases that the rule of law which was sought to be established in the Borkloe case and which allows a court to take into consideration such factors as inflation and other market forces ought to apply.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt; line-height:107%;font-family:"Book Antiqua","serif"">A careful reading of the plaintiff’s evidence shows he assigned his inability to secure another vehicle not to the inflationary trend of the cedi, nor to the unavailability of similar vehicles on the market, nor even to the fact that he is impecunious, a fact which in any case would not have rescued him, for on the authority of West African Bakeries v Miezah [1972] 1 GLR 78, 80 a plaintiff’s impecuniousity is of no moment. He simply gives as his reason for not securing a replacement vehicle the fact that his vehicle has not been repaired! What a reason to give when he himself in his evidence has described the vehicle as having been damaged beyond repairs! I think the plaintiff has simply refused to do what the law does expect him to do, that is, take reasonable steps to minimise his losses and so secure an alternate vehicle.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt; line-height:107%;font-family:"Book Antiqua","serif"">Be that as it may, the record does show that he led no evidence either through himself or his witnesses to establish the unavailability of such vehicles on the market. On the contrary, I do not think seriously speaking he could have put up any such plea namely, that there are no similar vehicles on the open market, for our markets are now flooded with vehicles for sale. So also, we have no evidence from the plaintiff of the rate of inflation. On the contrary his own witness who examined the wrecked vehicle assessed its pre-accident value (and I believe it could only have been its market value) at ¢180,000 and never indicated in what way inflation was likely to affect the value so assessed in the immediate future.<o:p></o:p></span></p><p class="MsoNormal" style="text-align:justify"><span style="font-size:12.0pt; line-height:107%;font-family:"Book Antiqua","serif"">In these circumstances, particularly when plaintiff himself has disclosed in his writ and so has claimed as the value of the chattel ¢180,000 bearing in mind that the normal measure of damages in destruc</main>
