AMOAH AND ANOTHER vs. HAMMOND [1992]DLCA4902

Date	1992-01-30
Suit No.	[1992 – 1993] 3 G B R 993 – 996
Citation No.	[1992]DLCA4902

AMPIAH JA

LAMPTEY JA

ADJABENG JA

ASUMADU MENSAH FOR THE APPELLANTS.

BROWN FOR THE RESPONDENT.

[1992]DLCA4902
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													<main id="main" class="content" style="min-height: 60rem" >AMOAH AND ANOTHER<o:p></o:p>vs.<o:p></o:p>&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;HAMMOND<o:p></o:p>[COURT
OF APPEAL]<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">

[1992 – 1993] 3 G B R 993 – 996&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 30 JANUARY 1992<o:p></o:p>

BROWN
FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:&nbsp;&nbsp;&nbsp; <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">

</div>AMPIAH JA. <o:p></o:p>The
plaintiff in this action sued the defendants at the High Court, Accra for loss
of use and damages resulting from the negligent driving of the 1st defendant,
the driver of the 2nd defendant's vehicle on 2 April 1982. The defendants
denied liability. On 18/1/89, the learned trial judge gave judgment for the
plaintiff and awarded him ¢350,000 being the cost of the Opel car, ¢300 per day
as loss of use for 14 days and interest on the total claim at the prevailing
rate of interest to be calculated from 16 April 1982 till the date of final
payment. He awarded the plaintiff costs of ¢12,000. The defendants have
appealed against the judgment on the grounds that (a) the damages and interest
awarded were excessive, (b) the judge erred for refusing to take into account
the salvage value of the car in assessing the damages. No additional grounds
were filed.<o:p></o:p>In
arguing the appeal, counsel for the defendants who did not seem to dispute the
award of interest in the circumstances, submitted that:<o:p></o:p>(i)
Even though on the evidence the plaintiff's vehicle was a total wreck, it was
necessary for the plaintiff to prove the value of what was left of the car so
as to determine the amount to be given for the replacement value.<o:p></o:p>(ii)
Since the learned trial judge found that 14 days was a reasonable period within
which the plaintiff could have found himself a new car, interest up to only 14
days should have been awarded.<o:p></o:p>(iii)
The interest awarded could not go beyond the date of judgment.<o:p></o:p>(iv)
The interest awarded should start, if at all, from the date of the issue of the
writ to the date of judgment and not more.<o:p></o:p>He
concluded that the learned trial judge failed to consider these matters and
therefore arrived at a wrong assessment of the damages.<o:p></o:p>Counsel
for the plaintiff supported the basis for the assessment of the damages. He
said in conclusion that he found no merit in the appeal and that it should be
dismissed. He argued that interest awarded should start from the date of the
accident when the cause of action arose, to the time the amount awarded was
finally paid.<o:p></o:p>The
plaintiff gave the value of his vehicle as at the time of the accident. He
stated that his vehicle was a total wreck. There was no suggestion by him of
the probable value of the wreckage. In the absence of any evidence to the
contrary, I think the judge was entitled to award the plaintiff the value of
his vehicle, as at the time of the accident. The ¢350,000 awarded the
plaintiff, as the value of his vehicle was therefore supportable. It means
however that the defendants would be entitled to the wreckage.<o:p></o:p>The
learned trial judge awarded the plaintiff ¢300 per day for loss of use for 14
days. This period he considered reasonable as the period within which the plaintiff
could have procured himself a new car. Despite the fact that the plaintiff was
unable to procure a new car or an alternative means of transport within the 14
days, since he had claimed for the full value of his car, he was not entitled
to loss of use for the period when the action was in court. It is now accepted
that impecuniosity is not a basis for the assessment of damages of this kind.<o:p></o:p>The
judge awarded interest on the loss of use. Counsel for the appellants has
contended that if interest was exigible at all, it should be for the period of
14 days. This may well be so if the amount had been paid within the 14 days,
but since that amount remained unpaid up to the date of judgment, it attracted
interest from the date the cause of action arose. The fourteen days period was
used only for the assessment of damages recoverable for loss of use.<o:p></o:p>I
am satisfied on the authorities that since damages are awarded as at the time
of the accident, whatever interest is awarded must also have reference to that
date. The rationale behind the award of interest, in my view, is that if
payment of damages including the cost of the vehicle had been made at the time
of the accident, the victim would have been able to utilize the amount. Since
the amount was not paid at that time, the victim would be entitled to interest
i.e. what he would have earned on the amount if it had been paid and had been
deposited in the bank. The plaintiff was therefore entitled to interest on the
amount as from the date the cause of action arose. The award of interest is
supported by the Courts (Award of Interest) Instrument 1984 (LI 1295). See also
the case of Royal Dutch Airlines (KLM) v Farmex Ltd&nbsp; [1989-90] 2 GLR 623, SC.<o:p></o:p>In
the instant case the judge awarded interest “up to the time of final payment.”
Was he right? Order 42 rule 15 reads:<o:p></o:p>“Every writ of execution for the
recovery of money shall be indorsed with a direction to the Sheriff, or other
officer or person to whom the writ is directed, to levy the money really due
and payable and sought to be recovered under the judgment or order, stating the
amount, and also to levy interest thereon, if sought to be recovered, at the
rate of £4 per cent per annum from the time when judgment or order was entered
or made, provided that in cases where there is an agreement between the parties
that more than £4 per cent interest shall be secured by the judgment or order,
then the indorsement may be accordingl</main>