IN THE SUPERIOR COURT OF JUDICATURE

IN THE HIGH COURT OF JUSTICE SITTING AT KOFORIDUA

ON THURSDAY THE 23RD DAY OF NOVEMBER, 2023 BEFORE

HER LADYSHIP JUSTICE GIFTY DEKYEM (MRS.)

SUIT No. C12/64/2019

1. ADAMU ABDULAI

2. AMPA CONFIDENCE

3. DORIS TAWIAH ALI PLAINTIFFS

VS

1. ABDUL RAHMAN

2. EXTRA GOLD MINING LTD DEFENDANTS

PARTIES: 1st Plaintiff present and represents 2nd and 3rd Plaintiffs; 1st Defendant

Absent; William Asiedu represents 2nd Defendant.

COUNSEL: Joseph Awakpaksa Esq. for Plaintiffs

Asuro Napari Esq. for 2nd Defendants (Absent)

JUDGMENT

The writ of summons shows the reliefs being claimed by Plaintiffs against the Defendants

jointly and severally as follows:

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 a. General and Compensatory damages of GHS500,000.00 for negligence of the 1st

Defendant causing the loss of the life of Mr. Ali Abudulai.

b. Cost of children’s education and maintenance from April 2018 to March 2019

assessed at GHS20,000.00.

c. Prospective cost of children’s education and maintenance (including health, food,

clothing, housing assessed as follows:

i. Sumaila Ali, a 14-year-old Junior High School Student – GHS30,000.00

ii. Safia Ali a 10-year-old pupil – GHS70,000.00

iii. Issakah Ali, a 5-year-old Primary pupil – GHS80,000.00

iv. Musah Ali, a 2-year-old nursery pupil – GHS100,000.00

d. Damages for the loss of dependence on the late Mr. Ali Abudulai by his four

children and two wives (2nd and 3rd plaintiffs)

e. Damages for the wrongful and unjust deprivation of the love, care, and affection

that Ali Abudulai gave and would have given the Plaintiffs as well as his four

young children as a result of the recklessness of the 1st Defendant.

f. Costs including lawyers’ fees assessed at 20% of the claim.

Facts

The plaintiffs are the brother and two wives of the late Ali Abudulai. 1st Defendant is a

contracted security worker of the 2nd Defendant, a mining company at Kwabeng. Mr. Ali

Abudulai was a contracted security worker of the 2nd Defendant from 13 July 2017 until

his demise on 12 April 2018. 1st Defendant admitted to the Police that a gunshot from his

gun killed the late Ali Abudulai.

Plaintiffs’ case.

It is the case of the Plaintiffs that the negligence of the 1st Defendant resulted in the death

of Ali Abudulai. They gave particulars of negligence as follows:

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 a. Failing to take reasonable care and skill while operating a dangerous weapon such

as a gun.

b. In the alternative, Plaintiffs shall rely on the doctrine of Res Ipsa Loquitur.

It is the further case of the Plaintiffs that the 1st Defendant shot and killed Ali Abudulai

during the course of his duties as a security officer of the 2nd Defendant. Plaintiffs averred

that efforts to get the 2nd Defendant to compensate them for their loss have fallen on deaf

ears hence their claim.

Defendants’ case

Judgment in default of defence was obtained against the 1st Defendant. 2nd Defendant

generally denied the Plaintiffs’ claim and averred that the 1st Defendant was properly

trained and licensed to handle a shotgun. It is the 2nd Defendant’s case that soon after the

death of Ali Abudulai, its management held a meeting with the family of the deceased

and both parties mutually agreed that the 2nd Defendant should pay GHS10,000.00 as

compensation to the deceased’s family which they paid. 2nd Defendant averred that it

continued to pay GHS750.00 as the salary of the deceased each month to the deceased’s

family to assist with the care of the family and children as part of the mutually agreed

compensation package.

At the close of pleadings, the following issues were settled for trial:

I. Whether or not the 1st Defendant who is an employee of the 2nd Defendant

negligently caused the death of the deceased.

II. Whether or not the 2nd Defendant is vicariously liable for the negligent act of the

1st Defendant which resulted in the death of the deceased.

III. Whether or not the Plaintiffs are entitled to their claim.

IV. Any other issue(s) as may arise from the pleadings.

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The Evidence Act, 1975 (NRCD 323) provides on proof in civil cases in sections 11 and 12

as follows:

Section 11

(4) In other circumstances the burden of producing evidence requires a party to

produce sufficient evidence which on the totality of the evidence, leads a

reasonable mind to conclude that the existence of the fact was more probable than

its non-existence.

Section 12

(1) Except as otherwise provided by law, the burden of persuasion requires proof

by a preponderance of the probabilities.

(2) “Preponderance of the probabilities” means that degree of certainty of belief in

the mind of the tribunal of fact or the Court by which it is convinced that the

existence of a fact is more probable than its non-existence.

The Supreme Court in the case of Ababio v. Akwasi [1994/95] GBR 774 where at page 777

of the report, Aikins JSC stated as follows:

The general principle of law is that it is the duty of a Plaintiff to prove his case;

that is he must prove what he alleges. In other words, it is the party who raises in

his pleadings an issue essential to the success of his case who assumes the burden

of proving it. The burden only shifts to the defence to lead sufficient evidence to

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 tip the scales in his favour when on a particular issue the Plaintiff leads some

evidence to prove his claim. If the Defendant succeeds in doing this he wins; if not

he loses on that particular issue.

The onus is therefore on the Plaintiffs to prove their claim by a preponderance of the

probabilities. In particular, the Plaintiffs have to prove that the 1st Defendant was

negligent in causing the death of the deceased and further that the 2 nd Defendant is

vicariously liable for the 1st Defendant’s negligent conduct resulting in the death of the

deceased.

Evidence of Plaintiffs

1st Plaintiff testified on behalf of the plaintiffs. He testified that he is the brother of the

deceased and 2nd and 3rd Defendants were the deceased’s wives. The deceased left behind

his parents and four minor children. The Plaintiffs are administrators of the estate of the

deceased. 1st Plaintiff testified that on 12th April 2018, he was at Koforidua when he

received information via phone that the deceased whilst on duty for the 2nd Defendant as

a security man was shot by an unknown person and was being rushed to the hospital. He

testified that he visited the deceased before his death at the Koforidua Central Hospital

where the latter told him all he could recollect was that, he and the 1st Defendant after

going for their general rounds and heading towards the 2nd Defendant’s office, heard a

gunshot when he was walking in front of the 1st Defendant. 1st Plaintiff testified that

eventually, 1st Defendant admitted to the Kibi Police that the gun that killed the deceased

was from his gun which belonged to the 2nd Defendant. According to 1st Plaintiff, 1st

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Defendant explained that the gunshot accidentally happened when he slipped on his way

with the deceased to the office.

1st Plaintiff testified that 2nd Defendant presented GHS10,000.00 to the deceased’s family

which they used for his burial. He stated that the 2nd Defendant continued to pay the

salary for the deceased to the mother of the deceased but the said money was inadequate

considering the expenses made on each of the children in a month so they demanded

GHS800,000.00 as reasonable compensation. 1st Plaintiff testified that when the 2nd

Defendant failed to oblige their request, the Plaintiffs initiated the instant action claiming

the reliefs aforementioned. 1st Plaintiff testified that since the death of the deceased was

caused by the Defendants, they ought to step in to perform his role in providing for his

parents, wives, and children.

Plaintiffs attached to their witness statement exhibit ‘A’ being Letters of Administration

granted the Plaintiffs to administer the estate of the deceased; exhibit ‘B’ is a copy of the

bank statement of Adama Awudu (deceased’s mother) with the Mumuadu Rural Bank,

Kibi showing deposits of the deceased’s salaries into the said account; exhibit ‘C’ are

copies of private school fees receipts in respect of Abdulai Issaka and Abdulai Musah;

exhibit ‘D’ is a school register showing the enrolment of Sumaila Ali in school; exhibit ‘E’

is a letter dated 20 March 2020 informing of Safia Ali having stopped school due to ill

health; exhibit ‘E1’ is Safia Ali’s laboratory report; and although 1st Plaintiff stated exhibit

‘F’ is the medical report of the cause of death of the deceased, exhibit ‘F’ is District

Coroner’s letter dated 19th February 2018 authorizing the burial of Ali Abdulai (deceased).

It is noted exhibit ‘F’ predates the date of death of the deceased.

Evidence of the 2nd Defendant.

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Three witnesses testified for the 2nd Defendant. DW1, William Asiedu, the office manager

of the 2nd Defendant testified that both the deceased and the 1st Defendant were engaged

by the 2nd Defendant on a one-year fixed contract as security workers. According to him,

the 1st Defendant was trained by the 2nd Defendant to handle a gun provided by the 2nd

Defendant for security duties. DW1 testified that on the 11th April 2018, the 1st Defendant

reported to the 2nd Defendant that whilst he and the deceased were on patrol duties, he

tripped, fell, and his gun went off and hit the deceased thereby injuring him and

subsequently passing away the next day.

DW1 testified that police investigation revealed that the 1st Defendant had intentionally

shot the deceased at the latter’s back thus 1st Defendant is standing trial for the murder

of the deceased. DW1 stated that on the 18th April, 2018, 2nd Defendant’s agents and the

family members of the deceased met and agreed on a compensation package comprised

of a lump sum of GHS10,000.00 and monthly payment of the deceased’s salary to the

deceased’s mother for the maintenance of the deceased’s children. In furtherance of this

agreement, 2nd Defendant paid a lump sum of GHS10,000.00 and paid the deceased’s

salary to his mother for 31 months, ceasing when the instant action was served on the 2nd

Defendant.

DW1 testified that the 2nd Defendant was not in any way negligent so as to cause the death

of the deceased. 2nd Defendant contended it was thus not liable to the Plaintiffs’ claim.

The testimonies of DW2, Yakubu Abdulai, the chief security officer of the of the 2nd

Defendant, and DW3, Nurudeen Hassan, senior security officer of the 2nd Defendant more

or less echoed DW1’s testimony. The only exhibits attached in support of the 2 nd

Defendant’s case were the working contracts between the 2nd Defendant and the 1st

Defendant and the deceased respectively which were marked as exhibits ‘1’ and ‘2’.

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In the evaluation of evidence adduced before the court in support and in defence of the

claim, I will now turn to the issues settled for trial. Whether or not the 1st Defendant who

is an employee of the 2nd Defendant negligently caused the death of the deceased. This

calls for the establishment of negligence on the part of the 1st Defendant. Negligence is

the failure to meet the settled standard of behaviour to protect society from unreasonable

risk. Proof of negligence required the establishment of a duty of care owed to the plaintiff

by the defendant that was breached resulting in damage or injury to the plaintiff. As

negligence has been denied, the onus is on the Plaintiffs to adduce sufficient evidence in

proof of negligence on the part of the 1st Defendant. In Byrne v Broadle 159 Eng. Rep. 299

(1863), the plaintiff was struck in the head by a barrel of flour from the defendant’s store

whilst being lowered through the window. The court held that the defendant had been

in control and possession of the barrel therefore there was a presumption that the

defendant was negligent for its falling.

The Plaintiffs stated the particulars of negligence as a failure by the 1st Defendant to take

reasonable care and skill while operating a dangerous weapon such as a gun or in the

alternative, plaintiffs shall rely on the doctrine of res ipsa loquitur. Although the 1st Plaintiff

was not at the scene of the incident to have first-hand information as to what transpired

when the deceased was shot, he contended that contrary to the assertion of the 2 nd

Defendant that the 1st Defendant’s gun went off when he fell and tripped, guns are

normally locked unless the trigger is activated. In other words, the 1 st Defendant ought

to have done something positive to have triggered the gun to shoot and not by the 1 st

Defendant mere slipping resulting in an accidental shot. All the witnesses who testified

in the trial for both parties were not present when the incident occurred to have testified

about what they saw. The 1st Defendant did not participate in the trial to afford the

elicitation of evidence through cross-examination. Be that as it may, the doctrine of res

ipsa loquitur avails the Plaintiffs. It is the rule of law where negligence is presumed when

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the object or situation that caused the injury or damage could not have occurred without

the negligence of the defendant. In spite of the 2nd Defendant arguing forcefully that the

1st Defendant received adequate training in handling the gun, the fact still remains that

the gun that killed the deceased was under the control of the 1st Defendant, and without

negligence, the gun would not have triggered to kill the deceased. The assumption of

negligence under res ipsa loquitur does not require evidence to establish negligence as the

injury may not have occurred in the absence of negligence. The court therefore finds that

the 1st Defendant although trained on how to use the gun was negligent on the day in

question leading to the demise of Ali Abdulai. The 1st Defendant therefore negligently

caused the death of the deceased.

The next issue that falls for determination is whether or not the 2nd Defendant is

vicariously liable for the negligent act of the 1st Defendant which resulted in the death of

the deceased. Vicarious liability is a way of imposing liability on a person for the torts of

a third party. To establish vicarious liability the plaintiff must show that the relationship

between the 1st Defendant and the 2nd Defendant is capable of attracting vicarious liability

and there is a sufficiently close connection between the relationship and the tort. A classic

example of such a relationship is one that exists between an employer and its workers

where the employer is held strictly liable for the torts of the worker provided the torts are

committed in the course of the worker’s employment. It was held in the case of Attorney

General v Dadey [1971] 1 GLR 228 that:

The principles which are applied to cases of this type, where it is sought to hold a

master or employer vicariously liable for the tort of his servant, are well

established. These are clearly stated in Salmond on Torts (14th ed.) at p. 658, para.

194 as follows:

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 A master is not responsible for a wrongful act done by his servant unless it is done

in the course of his employment. It is deemed to be so done if it is either

(1) a wrongful act authorised by the master, or

(2) a wrongful and unauthorised mode of doing some act authorised by the

master. It is clear that the master is responsible for acts actually authorised

by him: for liability would exist in this case, even if the relation between the

parties was merely one of agency and not one of service at all. But a master,

as opposed to the employer of an independent contractor, is liable even for

acts which he has not authorised, provided they are so connected with acts

which he has authorised that they may rightly be regarded as modes —

although improper modes — of doing them.

The well-established principle as stated in the above case is that ‘an employer who permits

his servant or employee to use his vehicle is not vicariously liable for the negligence of the servant

or employee unless the vehicle is being used for the employer’s business.’ DW1 testified in

paragraphs 3 and 8 of his witness statement as follows:

3. I know the deceased Ali Abdulai and the 1st Defendant Abdul Rahman were

both engaged on one-year fixed-term contracts as security workers of the

2nd Defendant.

8. On 11th April 2018, at about 10:40 am the 1st Defendant reported to the 2nd

Defendant’s Chief Security that while on normal patrol duties with the

unarmed deceased Ali Abdulai, he tripped and fell and his shotgun went

off and hit the deceased who was critically injured.

DW2 was cross-examined thus:

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 Q41 You say in paragraph 3 of your witness statement that you know the

deceased Ali Abdulai and Abdul Rahman the 1st Defendant, is that correct?

A41 Yes, My Lady

Q43 Do you know the terms of engagement between the 2nd Defendant and the

deceased, Ali Abdulai?

A43 Yes My Lady

Q44 Can you tell this honourable court what the terms were?

A44 My Lady they were engaged as security personnel to patrol on the

concession of the 2nd Defendant to prevent illegal miners on the 2nd

Defendant’s concession.

Q63 The gun that killed the deceased, Ali Abdulai belongs to the company, is

that correct?

A63 Yes My Lady

The above testimonies of DW1 and DW2 show that the deceased and 1st Defendant were

both engaged as security workers to patrol the concession of the 2nd Defendant. From

the above, the court finds that at the time of the incident resulting in the death of the

deceased, the 1st Defendant was doing what he was employed to do. That is 1st Defendant

was on patrol duty with the deceased doing what they had been employed to do. The 2nd

Defendant will therefore be held vicariously liable for the actions of the 1 st Defendant

resulting in the death of the deceased. This is fortified in section 30 of the Civil Liability

Act, 1963 (Act 176) which provides that: ‘The fact that a person causing and a person suffering

injury are fellow workmen engaged in a common employment and under a common employer

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shall not relieve the employer from responsibility of the results of the injury.’ The instant suit

is fought under Act 176 as averred in paragraph 1 of the statement of claim. 2nd Defendant

is therefore held liable for the acts of the 1st Defendant resulting in the death of Ali

Abdulai.

This moves us to the next issue of whether or not the Plaintiffs are entitled to their claim.

Plaintiffs are claiming GHS500,000.00 as general damages for negligence, GHS300,000.00

as education and maintenance of the deceased’s children, damages for the loss of

dependence on the deceased by his four children and two wives, damages for the

wrongful and unjust deprivation of the love, care, and affection the deceased would have

given to the Plaintiffs as well as his children and costs including lawyer’s fees assessed at

20% of the claim. Section 18 of Act 176 stipulates what damages are recoverable under

the Act as follows:

18 (1) (a) the total of such amounts that the Court considers proportionate to

the loss resulting from the death to each of the dependants,

respectively, for whom or on whose behalf the action is brought, . . .

18 (5) In addition, damages may be awarded in respect of expenses actually

incurred by the deceased before the death and in respect of funeral

and any other expenses incurred by the dependants or the personal

representative by reason of the wrongful act

Act 176 provides for both general and special damages under specific heads the latter of

which has to be proved strictly. The dependants are each entitled to general damages for

loss resulting from the death of the deceased. The court will award damages for the loss

to each of the dependants listed in relief ‘d’ namely 2nd and 3rd Plaintiffs who get

GHS20,000.00 each and GHS15,000.00 each to the four children of the deceased. No claim

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was made in respect of the parents of the deceased. Section 16 (5) of Act 176 stipulates

that the plaintiff shall furnish the defendant with particulars of the persons for whom

and on whose behalf the action is brought and of the nature of the claim in respect of

which damages are sought to be recovered. The failure of the Plaintiffs to furnish the

Defendants and indeed add the parents of the deceased to the claim endorsed on the writ

of summons leaves them out of the court’s consideration for a claim. The requirement to

furnish their particulars was in mandatory terms thus the court will assume in the

absence of compliance that Plaintiffs did not intend to make any claim for them.

In respect of damages actually incurred by the deceased before his death, no evidence

was led in respect thereof. It is special damages that ought to be pleaded specifically and

proved strictly. For that heading, therefore, the court will not award any damages as the

Plaintiffs failed to prove that entitlement under Act 176. Plaintiffs are also entitled to

damages as a result of expenses incurred in respect of the funeral of the deceased. In this

regard, plaintiffs testified that the 2nd Defendant gave the deceased’s family GHS10,000.00

towards the deceased’s funeral. This was denied and 2nd Defendant contended that it was

rather an agreed compensation between it and the deceased's family. In cross-

examination of DW2, he testified as follows:

Q49 You state in paragraph 12 of your witness statement that when he died you

had a meeting on 18th April 2018 and agreed with the deceased family to

pay a compensation of GHS10,000.00 to them, is that correct?

A49 That is not correct My Lady

Q51 So, the GHS10,000.00 that you mentioned in paragraph 12 of your witness

statement that you agreed to pay to the family of the deceased, what was it

meant for?

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 A51 My Lady it was meant for funeral purposes.

2nd Defendant’s own witness, DW2 having testified that the GHS10,000.00 given to the

deceased’s family was meant for funeral purposes for the deceased, the Plaintiffs are not

obligated to prove that assertion. The court finds that the GHS10,000.00 given to the

deceased’s family was meant for funeral purposes and will so hold. No further award

will be made in respect of funeral expenses as the 2nd Defendant has discharged that duty

already. The plaintiffs also prayed for costs of children’s education and maintenance from

April 2018 to March 2019 assessed in the sum of GHS20,000.00. The plaintiffs did not lead

evidence to demonstrate how the amount was arrived at. The evidence shows that

following the death of the deceased, the 2nd Defendant continued to pay the salary of the

deceased for the upkeep of the dependants. 1st Plaintiff testified in cross-examination as

follows:

Q16 And you would further agree with me that per your own exhibit ‘B’ the

payment started in May 2018 to February 2020 regular payment of what the

deceased would have been entitled as salary if he had continued to work

for the 2nd Defendant was paid into the account for the use of the deceased’s

family.

A16 My Lady that is so….

The unchallenged evidence of the DW1 was that the 2nd Defendant made 31 payments

equivalent to the deceased’s salary each month for the maintenance of the dependants. It

is further gathered from the evidence that the 2nd Defendant ceased the payments when

the Plaintiffs demanded GHS800,000.00 as compensation from the 2nd Defendant. The

court is satisfied that per the gesture of the 2nd Defendant’s payment of the salary amount

of the deceased to his family for the upkeep of the dependants, the 2nd Defendant has paid

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more than the Plaintiffs are claiming on this head. No further award will be made in this

regard.

Per the relief ‘c’, the Plaintiffs are claiming for the prospective cost of education and

maintenance in the sums above stated for the children of the deceased. Per Q121, it is

deduced that one of the children has passed on leaving three children. The court will in

the circumstances award GHS20,000.00 each to the remaining three children towards the

costs of their education and maintenance.

The court makes the following concluding orders:

1. GHS20,000.00 each to the 2nd and 3rd Plaintiffs and GHS15,000.00 each to the

deceased’s three children as general damages for loss resulting from the death of

the deceased.

2. No award is made in respect of damages actually incurred by the deceased before

his death.

3. No award is made in respect of damages as a result of expenses incurred in respect

of the funeral of the deceased as the 2nd Defendant gave money for that purpose.

4. No award is made in respect of the costs of the children’s education and

maintenance from April 2018 to March 2019.

5. GHS20,000.00 each to the remaining three children towards the costs of their

education and maintenance.

6. Costs of GHS15,000.00 awarded in favour of the Plaintiffs and against the 2nd

Defendant.

Justice Gifty Dekyem (Mrs.)

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Justice of the High Court

Cases cited:

Attorney General v Dadey [1971] 1 GLR 228

Ababio v. Akwasi [1994/95] GBR 774

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