AHENKORA v. MOUBARAK
[1972] 2 GLR 429
HIGH COURT, SEKONDI
Date: 3 JULY 1972
BEFORE: EDUSEI J.
CASES REFERRED TO
(1) West African Bakery v. Miezah [1972] 1 G.L.R. 78, C.A.
(2) Deen v. Davies [1935] 2 K.B. 282; 104 L.J.K.B. 540; 153 L.T. 90; 51 T.L.R. 398; 79 S.J. 381;
[1935] All E.R. Rep. 9, C.A.
(3) Brock v. Richards [1951] 1 K.B. 529; [1951] 1 T.L.R. 69; 95 S.J. 75; [1951] 1 All E.R. 261, C.A.
(4) Gayler and Pope Ltd. v. B. Davies & Sons, Ltd. [1924] 2 K.B. 75; 93 L.J.K.B. 702; 131 L.T. 507;
40 T.L.R. 591; [1924] All E.R. Rep. 94.
(5) Searle v. Wallbank [1947] A.C. 341; 176 L.T. 104; 63 T.L.R. 24; [1947] 1 All E.R. 12, H.L.
(6) Rickards v. Lothian [1913] A.C. 263; 82 L.J.P.C. 42; 108 L.T. 225; 29 T.L.R. 281, P.C.
(7) Hughes v. Williams [1943] K.B. 574; 112 L.J.K.B. 275; 168 L.T. 305; [1943] 1 All E. R. 535, C.A.
(8) Bonham-Carter v. Hyde Park Hotel, Ltd. [1948] W.N. 89; 64 T.L.R. 177; 92 S.J. 154.
(9) Yirenkyi v. Tarzan International Transport [1962] 1 G.L.R. 75.
[p.431] of [1972] 2 GLR 429
NATURE OF PROCEEDINGS
ACTION for damages being the cost of repairs to the plaintiff’s car which was damaged by the
defendant’s horse on the highway. The facts are fully set out in the judgment.
COUNSEL
K.E. Amua Sekyi for the plaintiff.
C.M. Cann for the defendant.
JUDGMENT OF EDUSEI J.
The plaint of the plaintiff in his writ reads as follows;
“The plaintiff’s claim is for damages for loss and damage suffered by the plaintiff as a result of a breach of statutory duty on the part of the defendant. Further or in the alternative the plaintiff’s claim is for damages for loss and damage suffered by the plaintiff as a result of the negligence and/or breach of duty on the part of the defendant and/or his servants. ”A statement of claim accompanied the writ of summons. In the course of addresses Mr. Amua Sekyi, counsel for the plaintiff, intimated to the court and to counsel for the defendant Mr. Cann that he would not pursue his claim based on a breach of statutory duty. This in effect means that the first limb of the plaintiff’s claim has been abandoned, and the plaintiff’s claim has been fought on negligence. The plaintiff’s case is that in the early hours of 1 January 1969, his driver the plaintiff’s first witness was driving his taxi-cab No. WR 6511 along the Axim road towards the Atlantic Hotel direction when a horse suddenly emerged from the near side of the road and collided with it, causing damage to it. The plaintiff is therefore claiming ¢1,640.45 as the estimated cost of repairs to his vehicle and ¢6.00 per day as loss of earnings from date of the accident to the date of judgment. Counsel for the plaintiff, in view of the decision in West African Bakery v. Miezah [1972] 1 G.L.R. 78, C.A., told the court to consider loss of earnings for a reasonable period within which the taxi-cab could have been repaired. The defendant was the owner of the horse. The decision in this case, however, turns on whether or not the defendant or his servant was negligent in the control of the horse. The defendant has denied negligence, and the burden to establish breach of duty of care on the part of the defendant was clearly cast on the plaintiff. In attempting to prove this the driver of the taxi-cab, the plaintiff’s first witness, testified as follows: “I was driving the plaintiff’s taxi-cab No. W/R 6511 on the Axim road towards Atlantic Hotel direction. As I got near Kalmoni Workshop on Axim road, I saw a horse which jumped suddenly from my near side into the road and hit my taxi-cab. I became unconscious and was taken to hospital. My taxi-cab was damaged by the horse. I regained consciousness within one hour after the accident. There was no one riding the horse at the time; it came to the road alone. ”[p.432] of [1972] 2 GLR 429
The plaintiff founded his claim on the fact that the horse came onto the highway unattended because it was not properly kept in a stable and this, in his view, was evidence of negligence. The plaintiff’s
evidence in support of this contention came from a police constable who investigated the criminal aspect of the case, and he testified that the horse was not properly kept. He said that what the defendant called a stable was “a large empty box.” The impression was sought to be created that if the horse had been properly secured in a stable it could not have escaped onto the highway to cause damage to the plaintiff’s taxi-cab. This is what the plaintiff sought to establish through the police constable. This is what he said: “I did inspect the stable which was a large empty wooden box and without any lock or key. The box was covered on all sides except one which served as an entrance for the horse. I did not see any rope. The position of the wooden box was 150 yards away from Axim road. It was placed behind the Princess Cinema. ”Under cross-examination this police witness further said: “The defendant did not tell me that there were iron doors with latch and pad-locks for locking the stable. I stood at the entrance and examined the stable. I did not go inside. There is no record in my diary of action of my visit to the place where the stable was situated.”
The defendant through Abdulai Mamprusi, the horse-boy at the material time, said that he was looking after the defendant’s horse and he started this work for the defendant in 1961. His duty consisted of taking the horse out of the stable every morning and tying it to a tree outside. He would then clean the stable and would go out to look for fodder for the horse. He would cut the grass into pieces, put them in the stable and would take the horse back into the stable to feed itself. He repeated this process in the afternoon as well as in the evening when he would tighten the rope around the horse’s neck and tie the other end of the rope to an iron rod which had been fixed to the ground in the stable. He would then lock the iron door with a pad-lock and go home. During the day while he was not feeding the horse this witness said that he rested near the workshop of some fitters near-by, apparently watching the horse in the stable. Abdulai Mamprusi said that the iron rod fixed to the ground measured eleven inches inNcircumference. He also gave the description of the stable as follows: Height .. .. .. eight feet two and a half inches, Width .. .. .. thirteen feet five inches, Length .. .. .. thirteen feet five inches, and concluded that these were inside measurements of the stable. The witness also stated that the “stable was constructed of wooden slabs with wooden poles fixed to the ground at the comers. The roof was [p.433] of [1972] 2 GLR 429 covered with asbestos sheets.” This witness again went on to say that on the evening of 31 December 1968, he locked the iron door to the stable as usual before he went home. He continued thus: “On 1 January 1969, I went to work as usual at 6.00 a.m. On arrival I found that the padlock had been broken and the horse was not in the stable. The saddle, blanket, and a bundle of rope were not in the stable. ”It becomes necessary for this court to evaluate the evidence of the police constable and the horse-boy to find out which of the two stories about the stable ought to be accepted. During the criminal trial of the defendant at the circuit court, Sekondi, the police constable gave evidence as follows: “During the course of my investigation I found the stable of the accused at the Princes Cinema. It consisted of one big empty box with some iron bar in front. It has one lock. ”(See exhibit B). At the trial of this action the police constable conveniently did not mention the iron bar in front of the stable; he did not mention the lock either. He did not find it necessary either to take the measurements of the stable which he described as “a large empty box.” In my judgment this was a necessary part of his investigation because it would have enabled the court to determine the size of the “large empty box” as being sufficient to contain the horse or not. Again it must have been apparent to this police witness that a peg or iron rod was one of the things to look for in a stable but he did not say whether or not he found either in the stable. There is no evidence from him also as to the suitability or otherwise of the “large empty box” for use as a stable. Again he did not in the course of his inquiry ask the defendant to point out the horse-boy to him, though he, the defendant, had mentioned in his statement to the police constable that the horse was under the care of his boy. It is correct that the defendant did not specifically mention the name of the boy in his statement, and according to the police constable the defendant promised to bring the boy to the police station. But since the defendant failed to do so he, as a
good policeman, should have visited the defendant to ask for the boy. He conveniently stayed away.
On the other hand the horse-boy gave his evidence in a straightforward manner, narrating how he did his work vis-a-vis the horse each day. He also described the stable where the horse was kept each night. Though the horse-boy spoke of an iron rod fixed to the ground, in his evidence at the circuit court (exhibit B) he made mention of a peg, and counsel for the plaintiff has invited me to accept a peg in this case to mean a short wooden stick fixed to the ground. I decline this invitation because a peg could be made out of wood or metal; and the Concise Oxford Dictionary (5th ed.) defines a “peg” as follows: “pin, [p.434] of [1972] 2 GLR 429 bolt of wood, metal etc. usually round and slightly tapering, for holding together parts of framework etc. ..”I now move on to consider whether there was a breach of duty of care or negligence on the part of the defendant or his servant. The defence is simply that the horse escaped from the stable as a result of a vicious act of a stranger—that the door to the stable was forced open and the horse’s accoutrements stolen—and therefore no negligence can be imputed to the defendant. Having regard to the half-hearted manner in which the police witness conducted his investigation about the stable, I prefer to accept the evidence of the horse-boy as representing the correct description of the stable. I further accept his evidence that what was fixed to the ground in the stable to which one end Of the rope was tied to secure the horse was an iron rod of eleven inches in circumference, or call it a peg, if you like, but it was made of iron.
There is no direct evidence to show how the horse left its stable and wandered onto the highway. This
horse had been kept in its stable for some six years and nothing had happened except on the night of 31 December 1968. I am inclined to accept the evidence of the horse-boy that when he visited the stable on the morning of 1 January 1969, he found that the door of the stable had been forced open and certain articles taken away. If this was so then it could be said that the opening of the stable door by an unauthorised third person made it possible for the horse to escape to the highway.
A number of decided cases were cited to me by both counsel to show in similar circumstances the liability or non-liability of defendants whose animals cause damage to property or persons on the highway. Before I consider some of these cases it is important to bear in mind that no duty is cast on an owner of an animal mansuetae naturae which is on land adjoining the highway, to prevent it from straying onto the highway unless it is known to be of a vicious habit. But a person who brings an animal onto the highway must take reasonable care to prevent it from doing damage to other persons, or to property. It is of great importance to keep the distinction in mind. Mr. Amua Sekyi referred me to the judgment of Slesser L.J. in Deen v. Davies [1935] 2 K.B. 282 at p. 291, C.A. I have read Slesser L.J.’s judgment and it establishes the principle that a person who brings an animal onto the highway must take reasonable care to avoid its doing harm to a person or to property. That case is, however, distinguishable from the instant case where the horse, by an unauthorised act of a third person, escaped from its stable and damaged the plaintiff’s taxi-cab on the highway. The horse was not taken to the highway by the defendant or his servant and that he subsequently failed to exercise reasonable control over it whilst there. In the Deen v. Davies case the defendant took his pony to town and did not take reasonable care to keep it under control and he was held liable for damage caused to an invalid. Again in Brock v. Richards [1951] 1 K.B. 529, C.A. the plaintiff was riding a motor bicycle in the evening along a main road. As he was near a field owned [p.435] of [1972] 2 GLR 429 by the defendant which was on a higher level than the road, a mare belonging to the defendant leapt over through the hedges bordering the highway and landed on the tank of the machine. In the plaintiff’s action for damages, the county court judge held that as the mare was not vicious or mischievous, but that as the defendant knew that she had a propensity to stray, his failure to prevent her getting onto the highway amounted to negligence. On appeal by the defendant it was held that, having regard to the finding of the county court judge that the mare had no particular characteristics which rendered her dangerous when on the highway the appeal must be allowed. The principle deducible from this case, as I see it, is that the straying of the mare or horse onto the highway does not impose liability on a defendant but if there is evidence of its vicious propensity then a duty will be cast on a defendant to take reasonable care that it does not stray onto the highway to cause damage. In so far as the defendant’s horse is concerned in the instant case there is no evidence of its mischievous characteristics, and its straying onto the highway as a result of an act by an unknown person does not impose any duty on the defendant. The defendant kept his horse in a stable behind the Princess Cinema building which was far removed from the centre of the town. The evidence which I accept is that the horse was tethered to an iron rod fixed to the ground in the stable and the stable was locked every evening by the horse-boy before he left for home and this was done on the evening of 31 December 1968. There was a night watchman in charge of the whole area comprising the Princess Cinema, a workshop and the stable, though I think that it was more likely that the watchman would pay greater attention to the Princess Cinema and the workshop than
to the stable. But in all the circumstances of the case I find that the defendant took reasonable precaution to prevent his horse from leaving its stable and straying onto the highway, and to fix him with liability will be imposing a very heavy duty of care on the defendant and this will be against the law. I have also considered such authorities as Gayler & Pope Ltd. v. B. Davies & Sons Ltd. [1924] 2 K.B. 75; Searle v. Wallbank [1947] A.C. 341, H.L.; Rickards v. Lothian [1913] A.C. 263, P.C.; Hughes v.Williams [1943] 1 All E.R. 535, C.A. and the last case is of some interest. In that case, Hughes v.
Williams (supra), the appellant was driving his motor-car along a public road during darkness. Hearing the sound of approaching horses he pulled up and two horses collided with and damaged the stationary motor-car. The horses, the property of the respondent, had spent the night in their stable, and a farmservant had let them out into the yard to water. The gate which led from the yard to the road, and which was usually shut at night, was on this occasion open, of which the farm-hand was not aware, and there was no evidence as to how the gate came to be open. The horses went through the gate and down the road, having broken away for some reason which the farmhand could not explain. The appellant claimed damages in respect [p.436] of [1972] 2 GLR 429 of the damage to his motor-car. It was held that in the circumstances the respondent was not guilty of negligence either by himself or his servant. A fortiori the present case is on a solid foundation: here, there was an explanation by the horse-boy that when he returned to work in the morning following the accident he saw that the stable door had been forced open, and certain articles stolen. It is clear that in this case some unauthorised person forced open the door to the stable to commit the offence of theft and by this act he enabled the horse to escape to the Axim road, a public road which abuts the place where the stable was situated. The escape of the horse was not known to the defendant until in the morning and after the accident; but in the Hughes v. Williams case there was no evidence as to how the gate through which the horses escaped came to be opened and yet it was decided that the defendant was not guilty of negligence. On the evidence before me I find that the defendant’s horse was securely kept in a stable on the night before the accident and that the escape of the horse therefrom was the act of an unauthorised third person. In the result I find therefore that the defendant or his servant was not guilty of negligence or breach ofduty of care, and the plaintiff’s action fails, and it is dismissed with costs of ¢150.00. If, however, my decision is reversed on appeal and the defendant found guilty of negligence the question of damages will become a necessary sequel to the plaintiff’s victory. I would therefore proceed to assess damages in that eventuality, if it should arise.
The plaintiff is claiming the sum of ¢1,640.45 as the reasonable cost of repairing his taxi-cab No. WR
6511. The plaintiff has up to the time he gave evidence not repaired his taxi-cab for lack of funds. My
view of the amount claimed is in the nature of special damages which of course must be pleaded and
strictly proved. The plaintiff’s third witness, a motor mechanic of S.C.O.A. Motors Takoradi, tendered in evidence an estimated cost of repairs to the taxi-cab and this is the amount the plaintiff is claiming. This is exhibit A which contains a list of the alleged damaged parts, but it is difficult to ascertain whether all the damaged parts shown on exhibit A arose out of the accident. It is common knowledge that when a vehicle gets involved in an accident and is taken to the workshop for repairs other already damaged parts not resulting from the accident are included in the list of repairs to be carried out. As I have stated earlier on in this judgment the estimated cost of repairs which the plaintiff is claiming smacks of special damages and special damages must be an amount actually spent, but an estimate could be more or less when the repairs are completed. What the plaintiff has done is to ask the court to give him money which he impliedly says he has spent but which in fact he has not. The statement made by Lord Goddard C.J. in Bonham-Carter v. Hyde Park Hotel Ltd. (1948) 64 T.L.R. 177 is very apposite here. He said at p. 178: [p.437] of [1972] 2 GLR 429
“Plaintiffs must understand that if they bring action for damages it is for them to prove their damage, it is not enough to write down the particulars, and, so to speak, throw them at the head of the Court saying: ‘This is what I have lost; I ask you to give me these damages.’ They have to prove it.”
The only way to prove it in this case is to show that the amount claimed has been spent and that the
expenditure flows directly from the accident. It must also be supported by credible evidence such as a
receipt. The police constable said that he had been in the police service at Takoradi for four-and-a-half years at the time he gave evidence on 10 December 1970. This is what he said, “I have been stationed in Takoradi for four and a half years and have been with the Motor Traffic Unit all the time.” It is very surprising that with his experience it did not occur to him to have the plaintiff’s taxi-cab examined by the certifying and examining officer at Takoradi to determine the extent of damage caused to the vehicle. Again here was a policeman who proceeded to the scene of the accident and saw the taxi-cab and the horse. He was able to tell the court that he saw a big cut on the horse’s face. But he did not tell the court what damages he found on the taxi-cab, and I can say that this witness displayed gross inefficiency in the investigation of this case.
Be that as it may, the court is of the view that as a result of the accident certain parts of the vehicle were damaged and the plaintiff therefore suffered some loss. The law says an arbitrary figure can be fixed as damages in circumstances such as these. But before I can fix such an arbitrary figure I must look at the evidence of the damaged parts given by the driver of the taxi-cab. I do not place any reliance at all on exhibit A. This driver had this to say about the damaged parts: “The windscreen was broken and the bonnet was damaged. The front two doors were also damaged.”
At the circuit court the driver said: “Suddenly the horse jumped from my left and before I could brake it hit itself against my windscreen causing some of the particles to enter into my eye. My vehicle was damaged.” (See exhibit B). It is quite evident that the windscreen of the taxi-cab was damaged, but I am prepared to take into account the other damaged parts given in evidence by the driver in this action. I have now to try to fix a figure, as nominal damages, in the absence of proof of special damage, and bearing in mind the damaged parts in respect of which the driver gave evidence I shall award the plaintiff nominal damages of ¢200.00. See Yirenkyi v. Tarzan International Transport [1962] 1 G.L.R. 75 and the cases therein cited. Having regard to the damaged parts given by the driver I do not think that it would have taken more than a month, i.e. 30 days to repair the taxi-cab, and I shall reckon the loss of earnings on this figure which I consider to be the reasonable period within which the taxi-cab would have been back on the road. See West African Bakery v. Miezah [1972] 1 G.L.R. 78, [p.438] of [1972] 2 GLR 429 C.A. The plaintiff in his statement of claim gave the amount of ¢6.00 as his daily takings, and in his evidence said, “The driver used to bring me ¢6.00 per day after making necessary deductions. ”Considering the evidence of the plaintiff himself and the driver, I accept the figure ¢6.00 as the net earnings for each day when the taxi-cab was in service. The loss of earnings therefore would amount to ¢180.00 (i.e. ¢6.00 a day for 30 days).
This means that if there is a reversal of my judgment as regards the issue of negligence the total amount of damages the plaintiff will be entitled to is ¢380.00 and I shall, in such circumstances, assess his costs at ¢150.00.
DECISION
Judgment for the defendant.
