ALBERT KWESI AMPOMAH YANNEY v. SSNIT & ORS

ADJEI, J.A:

The Plaintiff/Appellant in this appeal sued the Defendants jointly and severally for special and general damages arising from his properties which were stolen by the 2nd and 3rd Defendants while working as employees of the 1st Defendant. The Plaintiff who was then himself an employee of the 1st Defendant averred that the 2nd and 3rd Defendants who were employed as Securities by the 1st Defendant to protect him rather stole his properties after which they were tried and convicted. The Plaintiff therefore sued the 1st Defendant under tort for vicarious liability of its servants.

The Plaintiff’s position was that the 2nd and 3rd Defendants stole his properties from his duty post accommodation provided by the 1st Defendant and any loss occasioned to him as a result of the theft should be paid by the 1st Defendant who was the employer of the Plaintiff and the 2nd and 3rd Defendants.

The Plaintiff in his pleadings averred that the first theft took place on 6th July, 2002 and the second one was on 11th May, 2003. The 1st Defendant after denying the Plaintiff’s claim pleaded the Limitation Act; NRCD 54 and asserted that the Plaintiff’s action was not maintainable in law as it was filed hopelessly out of time. The Plaintiff instituted the action on 16th April, 2007, that is over three years, eleven months after the last theft had taken place.

The Trial High Court Judge heard the case on it as merits without taking advantage of the Limitation Act pleaded by the 1st Defendant to terminate the matter. The trial High Court Judge dismissed the Plaintiff’s claim or its merits. The trial Judge concluded his judgment by the quotation of Wiredu JSC (as he then was) in the case of Frimpong vs. Nyarko [1998-99] SCGLR 734 at 742 where he state thus:

“The justice to be dispensed is justice within the law and not one of sympathy. Judicial Sympathy, however plausible, can never be elevated to become a principle of law”.

The Plaintiff dissatisfied with the judgment of the High Court Sekondi filed an appeal against it to this Court on 29th March, 2012. The Notice of Appeal contained only one ground of appeal that is the omnibus ground which is that the judgment is against the weight of evidence on record.

The law is settled that a person who alleges that a judgment is against the weight of evidence on record is duty bound to demonstrate before the Appellate Court that the trial Judge either did not consider the facts and the laws which should have been in favou