GH - NAZIRE ABED v. CHARLES LABA

JUDGMENT

H. ABBAN (MRS.)

This is a unanimous decision of the Court.

The appeal before the Court arises out of the judgment of his Lordship Apaloo R. K. sitting at the High Court, Accra and delivered on the 10th day of May 2002. The judgment went in favour of the Plaintiff/Respondent (hereinafter referred to simply as the Respondent). The defendant/Appellant who will also be referred to henceforth in this judgment as simply the Appellant, being dissatisfied with the judgment has appealed to this Court against the said judgment.

The appellant stated five grounds of appeal filed pursuant to leave granted for the appeal to be lodged out of time. Counsel for the Appellant has decided in his wisdom to argue together the 1st and 5th grounds of appeal.

These are:—

“a - The ruling is totally at variance with the totality of evidence adduced at the trial;" and

“e - The judge made findings of fact that were contradictory and not supported by any evidence on record.”

According to Counsel for the Appellant, the fact that the judge found that the defendant “assaulted and battered the plaintiff at the Fusion Night Club that evening” contradicts his other finding that “at about 1.00 a.m. on 22/5/98 there was a scuffle between the parties at the Fusion Night Club.” Counsel argues that this “scuffle” was amply corroborated by PW1 who was present at the club. His line of argument is that if the trial judge is certain that there was a scuffle between the appellant and the Respondent, then the party who was worse off cannot succeed in an action against the other party simply because he was worse off in the scuffle.

His second ground of appeal is that the learned trial judge erred in granting special damages that had not specifically been endorsed on the writ of summons and had not been proved by the Respondent. Counsel’s argument is that in the law of tort, there is a distinction between general and special damages and that one of the distinctions is in the area of pleadings. He supported this submission with the Susque Lava case [1926] A.C. 665 where Lord Dunedin stated at page 661 as follows: “If there be any special damage which is attributable to the wrongful act that special damage must be averred it must be averred that such damage has been suffered but the quantification is a jury question.”

Though Counsel argued at length about the award of damages, both general and special, he finally conceded that if the court is inclined to affirm the judgment of the cou