SAKYI vs. APPIAH [1992]DLCA5103

Date	1992-05-21
Suit No.	[1992 – 1993] 4 G B R 162O - 1623 C.A
Citation No.	[1992]DLCA5103

AMPIAH JA

KPEGAH JA

LUTTERODT JA

KWESI DAPAA (FOR ADUSEI) FOR THE APPELLANT.

OPOKU-BOATENG FOR THE RESPONDENT

[1992]DLCA5103
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													<main id="main" class="content" style="min-height: 60rem" >SAKYI<o:p></o:p>vs.<o:p></o:p>APPIAH<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;
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[1992 – 1993] 4 G B R 162O - 1623
C.A&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE:&nbsp;
21 MAY 1992<o:p></o:p>

OPOKU-BOATENG
FOR THE RESPONDENT<o:p></o:p>

</div>CORAM:<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">

AMPIAH
JA, KPEGAH JA, LUTTERODT JA<o:p></o:p>

</div>AMPIAH JA. <o:p></o:p>On
4 March 1988 the plaintiff took action in the Circuit Court, Kumasi, against
the defendant for ¢1,000,000 damages for unlawful assault. The defendant denied
the plaintiff’s claim and counterclaimed for ¢2,000,000 damages for insult and
assault. On 31 January 1990, the learned trial judge gave judgment in favour of
the plaintiff on his claim. He however, did not say anything about the
defendant’s counterclaim. The defendant has appealed against the judgment on
the ground that the judgment was against the weight of evidence.<o:p></o:p>On
27 March 1992 however, the defendant filed two additional grounds of appeal.
These, by leave of the court, were admitted for argument. One of the grounds of
appeal is that the trial judge failed to give judgment on the counterclaim thus
rendering the whole trial inconclusive.<o:p></o:p>The
record shows without doubt that the trial judge never pronounced on the
counterclaim of the defendant. The legal position is that the counterclaim and
the claim are two separate claims and the judge is under a duty to pronounce on
both. Like the plaintiff, the defendant is required to establish his
counterclaim on the preponderance of evidence. It is true that sometimes,
judgment for the plaintiff on his claim makes the non-acceptance of the
defendant’s claim obvious but it is also true that both parties may win on
their respective claims or that the plaintiff may lose while the defendant
wins. The failure therefore to pronounce on any of the claims (ie the
counterclaim and the claim) makes the judgment inconclusive in so far as that
particular claim is concerned. In this regard, the learned trial judge failed
to perform his duty.<o:p></o:p>Such
failure however, does not make the whole trial null and void and for that
matter does not render the pronouncement on the other claim inconclusive. This
court has a duty to look at the evidence on record and do what the trial court
ought to have done. In other words to pronounce on the other claim on which the
trial court failed to give judgment, upon the evidence on record.<o:p></o:p>The
evidence in support of the defendant’s counterclaim I find to be most
unsatisfactory. The evidence of the defendant’s two witnesses did not support
him. The insult and assault the defendant uttered were at the queenmother’s
house where the plaintiff lives. DW2 was emphatic that she did not see the
plaintiff during the incident. DW1 spoke of what happened when the plaintiff
sent the meat to the defendant’s house and insulted him. The defendant spoke of
the incident at the queenmother’s house where the plaintiff and others
allegedly assaulted him. I am satisfied that with such evidence the defendant
was bound to fail on his counterclaim. I would accordingly dismiss the
defendant’s counterclaim.<o:p></o:p>The
plaintiff was arraigned before the District Court Grade I, Kumasi, but was
discharged on the offence of acts tending to cause a breach of the peace.<o:p></o:p>On
the claim of the plaintiff, the trial judge accepted the evidence of the
plaintiff and his witnesses. All the witnesses supported the assault of the
plaintiff by the defendant. The plaintiff became unconscious and was sent to
the hospital where he was admitted for 4 days. The medical report, which was
tendered in evidence by the plaintiff, showed the extent of injury caused to
the plaintiff. The plaintiff gave further evidence of how he had to procure
drugs for his treatment; he was still buying drugs at the time of hearing.<o:p></o:p>The
plaintiff did not tender any receipt and was not very sure of how much he had
actually expended. His claim was however for general and not special damages.
The damages were therefore at large and it was for the trial judge to assess
them. Looking at the medical report and the injuries suffered and the age and
position of the plaintiff, I think the damages awarded were reasonable.<o:p></o:p>I
would dismiss the appeal.<o:p></o:p><o:p>&nbsp;</o:p>KPEGAH JA. I
agree.<o:p></o:p>

LUTTERODT JA. I
also agree.<o:p></o:p></main>