MARY ADOMAKO v. MINA AMOAKO ADDIE & KWABENA KUSI
2012
COURT OF APPEAL
GHANA
CORAM
- MARIAMA OWUSU, J.A. (PRESIDING)
- FRANCIS KORBIEH, J.A.
- IRENE DANQUAH, J.A
Areas of Law
- Tort Law
- Civil Procedure
- Evidence Law
2012
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Ghana Court of Appeal decision, authored by Justice Mariama Owusu, concerns Mary Adomako’s suit arising from the death of her brother, Akwasi Acheampong, who was struck by Vehicle No. AS 7538-09 near Asafo/O.A. Junction while crossing from the driver’s side and died upon arrival at Komfo Anokye Teaching Hospital. The High Court had entered judgment in default of defence and set the matter for damages assessment, but later dismissed the claim as unproven. On appeal, respondents raised a preliminary procedural objection and queried Adomako’s capacity. The Court of Appeal rejected the technicist objection, held the appellant had capacity under Letters of Administration, and concluded negligence was established by default due to respondents’ failure to defend, rendering the police report’s conclusiveness immaterial. It allowed the appeal, awarding special damages (including hospital and funeral expenses) and general damages for loss of expectation of life, pain and suffering, and mental distress, totaling GH¢36,503.14 plus costs.
JUDGMENT
Mariama Owusu, J.A.:
On 16th September, 2011, the High Court, Kumasi dismissed the plaintiff’s claim as not proved. In its judgment, the court held among other things as follows:
“Plaintiff was bound to establish the negligence of the defendants before she could succeed in her claim. It was not to be assumed that as her brother passes away in a motor accident, the driver and owner of the vehicle were without more, to blame for his death. It was not also to be assumed that because the defendants did not file a defence to the action, that discharged the burden placed on the plaintiff ever (sic) if she made no effort to prove her claim when she led evidence on oath. In my view, the plaintiff failed to establish her case of negligence against the defendants, and no court of justice, in such circumstances, will give her judgment for a claim she does not deserve having failed to prove her cause of action.
The court appreciates the predicament of the plaintiff who lost her brother suddenly, especially when the victim appeared to be the bread winner of the family and when plaintiff now has the additional burden of taking care of the children of the victim. But that sympathy alone cannot be a reason to give judgment for the plaintiff when she has failed to prove her case on balance of probabilities.
For this reason, the case of plaintiff is hereby dismissed”
Dissatisfied with the decision of the court, the plaintiff appealed to the Court of Appeal on the following grounds:
a. The learned High Court Judge was selectively unjust in his approach to counsel for appellant.
b. The learned High Court Judge failed to appreciate the court processes and also failed to appreciate the nature of plaintiff’s claim.
c. The learned High Court Judge failed to consider the plaintiff’s case.
d. The learned High Court Judge erred in law in dismissing the plaintiff’s claim
e. Further grounds of appeal will be filed on receipt of the record of proceedings.
The reliefs sought from the Court of Appeal:
The setting aside of the judgment of the High Court and awarding adequate claim in favour of the plaintiff.
Before dealing with the arguments for and against this appeal, I will give a brief background of this case.
The plaintiff by his writ of summons claims against the defendants:
a. General and special damages as per the statement of claim.
b. Costs.
In the 16 paragraphs statement of claim, the plaintiff avers that, she is the sister of the late Akwasi Acheampo