IDDRISU vs. ATTORNEY-GENERAL [2001-2002] 1 GLR 608

CASE REFERRED TO

Biles v Caesar [1957] 1 WLR 156; [1957] 1 All ER 151; 101 SJ 108, CA.

ACTION by the plaintiff-landlord against the Attorney-General for damages for negligence arising from damage caused by fire to premises rented by the State for the residential use of the police. The facts are sufficiently stated in the judgment of the court.

Ibrahim Mahama for the plaintiff-landlord.

S K Atadzi for the defendant-Republic.

Aninakwa J. The plaintiff is the owner of the compound H/No N47/3, Yendi. In 1972 the plaintiff let this house to the State for use as residential apartments for policemen. On 9 January 1994 at about 1 pm there was a fire outbreak in the house in consequence of which a substantial part of the house was destroyed. The State did not reinstate or repair the house. Neither did the State give any money to the plaintiff to enable him to do so. In these circumstances, the plaintiff issued this writ of summons against the Attorney-General as representing the State and indorsed it with the claim thus:

“The plaintiff claims against the defendant general and special damages and the replacement cost of the plaintiff’s house No N47/3, Yendi which was destroyed by fire on or about 9 January 1994 as a result of the negligence of one Sammy Amokpi, a servant or agent of the Republic of Ghana.”

[p.611] of [2001-2002] 1 GLR 608

The indorsement shows that a claim was being made against the State on the grounds of negligence. This being so, the specific acts which are alleged to constitute the negligence must be pleaded and subsequently proved. The part of the statement of claim dealing with the negligence is in paragraph (3) where it was stated:

“Amokpi was using an electrical appliance, a water heater, for the wrong purpose of boiling yams. And while the heater was on, he was not in the room. The water boiled over resulting in the heater catching fire.”

No other particulars of the negligence were given. The Amokpi mentioned was one of the policemen staying in the house with his family. It was established at the trial that at the material time Amokpi was not in the house but was on duty at the police barrier on the Yendi-Tatale road.

At the trial the plaintiff led evidence to the effect that whilst the house was burning, the wife of Amokpi who had all along been sitting on the veranda outside the room where the fire was said to have started told some inmates of the house that her thirteen year old daughter, Vida Amokpi, was using a water heater to cook yams in their room and the fire started. The act of negligence was thus centered on the allegation that: “a water heater was used for the wrong purpose of boiling yams.” This then was the fact which ought to be established to found negligence. In this case, as always, the onus rests on the plaintiff to prove the negligence he alleges. The inability of the defendant to establish some other fault he alleges to be on the part of the plaintiff or to establish anything at all does not in any way diminish the onus on the plaintiff to prove the negligence he alleges. Negligence is a conclusion of mixed fact and law.

The onus rests on the plaintiff to plead and prove the acts relied upon to amount to negligence as existing in fact. It will then be for the court to say whether those facts constitute negligence as a matter of law. In the instant case, it will be for the plaintiff to establish:

(1) that a water heater was used to boil yams; and

(2) the fact that when a water heater is applied for the boiling of yams, that act alone and without more, fire

[p.612] of [2001-2002] 1 GLR 608 ensues.

The court must make specific findings of these acts showing the evidence in support of each. But these findings must be made. On the second leg it is worth noting a submission of the plaintiff in his address. It went thus:

“The first defendant witness in his evidence only made allegations of a faulty wiring in the ceiling. The first defendant witness is not an electrical engineer. He is not even an electrician. He is not a competent witness on the issue of faulty wiring.”

I agree with the plaintiff that the first defendant witness did not state what he saw of the wiring as matters of fact from which an inference may be drawn that it was faulty. The material question in this case is this: Given all things to be in good condition—the wiring, plugs, sockets, voltage and water heater, will the addition of yams to water being heated by itself cause fire? This is eminently a scientific or electrical matter. The plaintiff offered no evidence on this. The plaintiff did not even question the fourth defendant witness—the fire serviceman on it. I cannot make a finding without evidence. I cannot and will not hold that the boiling of yams in a water heater is by itself a negligent act.

I will now examine whether a water heater was used to boil yams. The plaintiff gave no direct evidence that on that day the Amokpi family used a water heater to boil yams. The only evidence was that Amokpi’s wife, the second defendant witness, said Vida used a water heater to boil yams. This statement was denied in evidence by the second defendant witness. When it is established that a witness had made a previous contradictory statement, its highest effect is to destroy the evidence of that witness. The previous statement does not become a positive proof of anything for the opposite party. Furthermore, that former statement does not become a positive evidence of the party calling him for it to be said that that party gave some evidence in support of his opponent. The plaintiff led no evidence that a water heater was used to boil yams. I cannot and will not hold that a water heater was used to boil yams.

The plaintiff also relies on some material which he describes as

[p.613] of [2001-2002] 1 GLR 608 admissions of liability to found the liability of the State. The fifth defendant witness, the officer-in-charge of Ghana Police —Yendi is said to have undertaken to request his superiors to provide funds for the plaintiff to rebuild the house. And this is taken to be an admission of liability of the State for the negligence of its servant Amokpi. The fifth defendant witness and Amokpi are fellow servants of the State and cannot affect Amokpi by any admission made by him. The fifth defendant witness did not see whatever caused the fire. The fifth defendant witness does not have such standing with the State as to make admissions binding on the State. The fact relied on as admission, obtaining estimates for the purpose of requesting Police Headquarters to make funds available to effect repairs, is not exclusively referable to the act relied upon as negligent. It will be seen later in this judgment that the act of the fifth defendant witness is more directly referable to some quite different kind of liability.

The plaintiff was seeking to set up a form of estoppel and use it, not as a shield to defend himself, but as a sword to build a positive fact. The fact of admissions or estoppel was not pleaded. On the evidence before me, I cannot find as proved any act of negligence on the part of Samuel Amokpi or on the part of any person for whom he can be said to be responsible.

On the assumption that Samuel Amokpi was negligent and by that negligence caused the destruction of H/No N47/3, Yendi, can the plaintiff recover damages from the State on the tort of negligence? There are formidable hurdles in the path of the plaintiff. Article 293 of the Constitution, 1992 of Ghana which gives a right of action against the State, leaves it to common law to say when the State is liable in respect of any tort. Like an incorporated company the State is not a natural person and must act by its employees or agents. At common law the liability of an employer in respect of a tort committed by an employee is vicarious. The liability of the employer arises only when the tort is shown to have been committed in the course of the employment of the employee. Broadly speaking, this is whenever the employee is acting in his employer’s business or interest. This common law position, which had always existed, has recently been re-enacted in section 3(1)(a) of the State Proceedings Act, 1998 (Act 555) thus:

[p.614] of [2001-2002] 1 GLR 608

“Liability of the State in tort— 3. (1) The State is subject to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject, in respect of —

(a) torts committed by its employee or agent while acting within the scope of his office or employment.”

Acting within the scope or course of employment is a material part of the cause of action against the State and must therefore be pleaded. The plaintiff did not plead this fact. The plaintiff did not lead any evidence in proof of this fact. The plaintiff’s case as pleaded was that Amokpi was negligently cooking yams. Surely this act of cooking cannot by any stretch of imagination be said to be within the scope or in furtherance or pursuance of any duties of Amokpi as a policeman. For this reason also the claim against the State for negligence on the part of Amokpi must fail.

There is also to be considered the provisions of article 293(3) of the Constitution, 1992 which States:

“(3) No proceedings shall lie against the Government by virtue of paragraph (a) of clause (2) of this article in respect of an act or omission of an employee or agent of the Government unless the act or omission would, apart from this article, have given rise to a cause of action in tort against that employee or his estate.”

The evidence in this case was that the alleged acts of negligence were committed by Vida Amokpi— the third defendant witness—thirteen year-old daughter of Samuel Amokpi the policeman. The plaintiff went to great length to show that the policeman Samuel Amokpi was nowhere around when the acts complained of were taking place. There was no evidence to the effect that Samuel Amokpi ordered or even authorised the act of cooking yams with the water heater or that he was even aware of that practice. It is trite law that a father does not own his child as a form of property and that the parent is not liable for the tortious act of his child. The plaintiff could not have recovered against the policeman Samuel Amokpi for the tort of Vida Amokpi.

However, this is not the end of the matter. On the basis of the [p.615] of [2001-2002] 1 GLR 608 pleading and evidence in this case, I hold the defendant liable to the plaintiff. The plaintiff pleaded and proved the following facts, that is to say:

(1) The plaintiff was the owner of H/No N 47/3, Yendi.

(2) In 1972 the plaintiff let out or demised the said premises to the State.

(3) The State put policemen into occupation of the premises.

(4) In January 1994 fire broke out of the house and destroyed the premises.

In these circumstances the resulting legal position is given in Halsbury’s Laws of England (3rd ed), Vol 23 at p 563, para 1235 thus:

“Tenant’s liability to repair after fire. At common law, the tenant was liable to rebuild or repair if the house was destroyed or damaged by fire unless the burning was by lightening or act of God, for unless the tenant repaired the damage within a convenient time, it was waste. No distinction was made between accidental fires and fires caused by negligence.”

In Biles v Caesar [1957] 1 All ER 151 at 153, CA Denning L J said:

“It is a settled rule of pleading that if a pleader alleges more than is necessary, he is entitled to rely on any lesser facts covered by that allegation which are sufficient for the purpose he has in hand.”

The liability of the State on this ground attaches directly to the State as tenant. The liability does not depend on any default on the part of any person. It is an incident of its relationship as a tenant which the law imposes on tenants. On the payment of rent, I will refer to Halsbury’s Laws of England (3rd ed), Vol 23, at p 553-554, para 1215:

“Effect on rent of damage by fire. The destruction of premises by fire does not, in the absence of express stipulation, suspend the liability of the tenant to pay rent; and

[p.616] of [2001-2002] 1 GLR 608 even though the landlord has received the insurance money and refuses to rebuild, the rent continues to be payable throughout the residue of the term.”

From the citations from Halsbury’s Laws of England (3rd ed), Vol 23, it can be seen that both the acts of taking steps to get money to rebuild and payment of rent after the fire were in pursuance of discharging the tenant’s obligation imposed by law and had nothing to do with any act of negligence. At the end of it all, I hold that the plaintiff’s claim against the defendant succeeds on this ground.

I now come to determine damages. Estimates of the cost of rebuilding or repair of the house were obtained by the State from the Public Works Department and are in evidence as exhibit A. The estimates were prepared on 14 August 1995. The plaintiff says the cost of the repairs have increased enormously since the making of the estimates. There is, however, no evidence as to what extent each item in the estimates has increased. I do appreciate this would have been very difficult to give at the trial. I accept that prices have increased greatly since 1995. The obligation was on the State to carry out the works itself or make available the money for the plaintiff to execute the works. The State did nothing but held and used the money due to the plaintiff. This is a case where interest ought to be awarded to take care of some of the increases in prices. By the Courts (Award of Interest) Instrument, 1984 (LI 1295) the rate of interest to be awarded should be the rate prevailing at the time the order is made by the court. The bank rate is the rate of discount allowed by the Bank of Ghana on 91 day’s treasury bills when the government borrows money. The bank rate is now 37 per centum per annum. Accordingly, I give judgment for the plaintiff for the ¢33,700,000 estimated by the Public Works Department, together with interest at the rate of 37 per cent per annum from 15 August 1995 to the date of payment.

The plaintiff also claims ¢1 million as expenses for travels to Accra to follow up his claim. I reject this claim for the following, among other reasons:

(1) Not a single letter was tendered in evidence as having been written in the matter by the plaintiff. A party cannot make unnecessary and perhaps luxurious expenses [p.617] of [2001-2002] 1 GLR 608 unauthorised by the other party and expect that other party to pay the same. What the plaintiff had to do was to bring an action, which he finally did, and on succeeding, costs for the action will be awarded.

(2) The law imposes the liability to repair without any fault. There is no basis for other damages to be awarded.

(3) I know of no authority for the proposition, and the plaintiff has not drawn my attention to any, that when a debtor delays in paying his debt, damages are recovered.

(4) In the event of delay, the court may award interest to be paid as has been done in the instant case. I award cost of ¢1 million in favour of the plaintiff.

Judgment for the plaintiff.

DRKS