Abed Vrs Laba (H1/95/2004.) [2004] GHACA 9 (30 April 2004);

Flynote: 

IN THE SUPERIOR COURT OF JUDICATURE

IN THE COURT OF APEAL SITTING AT ACCRA

ON THE 30TH DAY OF APRIL, 2004  BEFORE

JULIUS ANSAH  JA, J.B. AKAMBA AND

H. ABBAN (MRS) JJA.

 

H1/95/2004.

 

                     NAZIR ABED                   ]     …    PLAINTIFF/RESPONDENT

 

                             VRS.

 

                      CHARLES LABA            ]    …      DEFENDANT/APPELLANT

                      

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                                                  J U D G M E N T

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                    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 (herein-

          after 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.”

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             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 court below and to uphold the damages awarded,

              the Court must award only nominal damages in the absence of proof of

              consequential damages suffered by the Respondent.

                      The appellant therefore prays this Court to set aside the award made at

              the Court below and in its stead make a nominal award in favour of the

              Respondent.

                        The facts of this case are that on the night of 22 May 1998 at about

              1.00 a.m., the Appellant and the Respondent who were then at the Fusion

              Night Club, Osu were involved in a scuffle.  How did the scuffle start?

  According to the Respondent, he was seated at a table in the night club with    some friends since that date happened to be his 24th birthday and they were             

 

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celebrating same, when without any provocation from Respondent the    Appellant approached their table and asked him to choose a leg to be broken                    

whilst insulting him and his family. Respondent had then returned from     France where he had just had a knee surgery from which he was still recovering and he was therefore using crutches. The Appellant then slapped the Respondent and he was about to “punch” the operated knee when the Respondent held his (Appellant’s) wrist.

                     From the foregoing account which was amply supported by the PW1

           (Ali Kwame Maoux) whose evidence-in-chief was to the effect that he saw the

           Appellant attack the Respondent who was then seated on a bench without any

          provocation from the latter.  This piece of evidence was not discredited under

          cross-examination nor was any other evidence led through another defence

          witness to contradict same. 

                    Thus it stands on the records that a battery or “an unwanted physical

          contact of his person which constitutes the tort of battery” took place on the

          Respondent on the night of the 22/5/98.

                     In the case of Cole vrs. Turner {1706} 6 Mod. 149, Holt C.J. stated that

the least"touching of another in anger is a battery;” and  this is still the law.  In the law of battery there is no requirement to prove that the contact caused or threatened to cause any physical injury or harm.  Thus in the case of Wilson vrs. Pringle {1986} 2 AER 440 at page 495 C.A. , it was held that “an intention to injure is not essential to an action for trespass to the person which is the offence.”

                     Therefore the culpable touching may take several forms subject to the

          Rule that the contact must be direct.

                     The principle in awarding damages is to compensate the “Plaintiff”

          for the losses pecuniary and non-pecuniary which he had sustained as a result

          of the “Defendant’s” tort – more specifically the assessment process is said to

          aim at restitutio in integrum.

                     Here we cite the oft-quoted words of Lord Blackburn that “the Court

           should award that sum of money which will put the party who has been injured

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            or who has suffered in the same position as he would have been in if he had

            not suffered the wrong for which he is now getting his compensation or

            reparation.”

                   The loss for which the Plaintiff claims compensation must be caused by

            and must not be too remote a consequence of the defendants tort.  Thus in the

            case before us, the Appellant must reasonably have foreseen that his conduct

            would aggravate the Respondent’s injury since he knew or should have known

            that the Respondent was not physically sound considering that he was using

             crutches.

                       In our opinion we think the learned trial judge was right in coming to

             the conclusion he did in finding that it was the Appellant who “left his seat,

             advanced on the Plaintiff, slapped him” and when the Respondent tried to

             escape, “pursued him, punching his feet and leg.”  Again the fact that the

             Respondent was using crutches and had had an operation on his knee in

             France was also not disputed.

                      The cases of Rookes vrs. Barnavd {1964} A.C. 1129, 1221 – 1233 and

             Broome vrs. Cassel & Co. Ltd. {1972} A.C. 102 both support the legal

             principles that the time, place and manner of the trespass and the conduct

             of the Defendant may be taken into account and the Court may award

             aggravated damages on these grounds.

                       This Court therefore does not intend to interfere with the findings of

             fact by the learned trial judge at the Court below.  In view of the principle

             stated in the two cases just cited supra, we affirm that though it was not the

             physical assault by the Appellant which caused Defendant’s original injury

              to his knee; after the trespass to his person, the doctors recommended that he

              goes back to France for some laboratory tests to be done to assess any fresh

              damages which may have been done to the knee due to Appellant’s conduct.

                          Counsel for Appellant seriously is not contending that there has been

               a battery committed on Respondent by the Appellant.  His only serious

               contention is that the damages awarded is excessive having regard to the

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                entirety of the claim made by the Respondent by way of general damages.

                          Following the decisions in the cases of Rookes vrs. Barnard and

                Broom vrs. Cassell and Co. Ltd.; we are of the opinion that this is not a case

                where nominal damages must be awarded.  We are also of the opinion that

                the legal axiom “you take your victim as you find him applies here.”

                           We therefore dismiss this appeal, affirm the judgment and damages

                 awarded at the Court below.

                            Costs of ¢5 million awarded the Respondent as against the

                  Appellant.

     

 

                                                                                    HENRIETTA ABBAN(MRS.)

                                                                                           JUSTICE OF APPEAL

 

             

  I agree.                                                                           JULIUS ANSAH

                                                                                    JUSTICE OF APPEAL                                   

 

I also agree.                                                                      J.B. AKAMBA

                                                                                    JUSTICE OF APPEAL                                

           

         

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