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JOANA EWURABENA OCRAN

(PLAINTIFF/ APPELLANT)

vs.
AMORT SECURITY SERVICES LTD
(DEFENDANT/ RESPONDENT)

[COURT OF APPEAL, ACCRA]

SUIT NO.HI/129/2019 DATE: 28TH MAY, 2020

COUNSEL:
SAMSON LARDY ANYENINI FOR DEFENDANT/RESPONDENT
F.K. YEBOAH FOR PLAINTIFF/APPELLANT
CORAM:
OFOE J.A, SOWAH J.A, MENSAH J.A

JUDGMENT

OFOE,J.A:
This appeal we will refer to the plaintiff/appellant as the plaintiff as she was in the trial
High Court and the defendant/ respondent also as the defendant.

The case of the parties that governed the trial and the judgment in the trial court can be
stated tersely as follows:

The plaintiff was in need of security for her shops which are located in the environs of
East Legon. For that purpose, she contacted the defendant who agreed and posted one
security guard to surveil the shop over the night, 6pm to 6am. It is not in dispute that the
plaintiff paid GHC400 every month. Unfortunately, on the 31st of May 2016 plaintiff was
informed that burglars during the night had broken into the shop and stolen some items
from the shop. Since she expected the security guard to have alerted occupants of the area
or anybody who could be of assistance to ward of the intrusion but did not, plaintiff
concluded that the security guard was negligent in his assignment and therefore the
defendant company for whom he works should be responsible in atoning for the loss
arising out of the burglary. Why would the plaintiff insist that the guard was negligent

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she provided in paragraph 13 to15 of her statement of claim. We will come back with
details of this pleadings in the course of this judgment.

Mention is also made in her pleadings of the fact that the guard was prosecuted but
acquitted and discharged

What loss was occasioned the plaintiff is provided in paragraph 17 and 18 of the
particulars of claim totaling GH¢458,500.00. The stolen items include assorted wax print,
laces, kente, dresses and jewelry.

To make for the loss she sued the defendant claiming

“1. Recovery of all the items stolen from the shop of the plaintiff or in default
payment for the total cost of the items

2. Damages for breach of agreement to continue to provide security services

to the shops of the plaintiff.

3. Cost including lawyer’s fees

4. Any other reliefs deemed fit by the honorable court”

The defendant company on its part in her defence created the impression that even
though there was agreement to provide a guard what was provided was a temporary
measure since it was understood that the plaintiff will come back to the company for a
formal written contract. She did not come back and therefore there was no written
contract which would have entitled the defendant to take inventory of the items to be
protected in the shop. It however had a bare knowledge of the glass and burglar proof
aspects of the shop.

Its position on the GHC458,500.00 loss the plaintiff is alleging is to seek strict proof since
it considers the claim of the plaintiff spurious and a contrived arrangement to deceive the
court.

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At the conclusion of the trial the court dismissed all the claims of the plaintiff except the
claim for damages for breach of agreement to continue to provide security services to the
shops of the plaintiff.

Plaintiff does not accept the reasoning and conclusion of the trial judge dismissing its
case hence her appeal before us seeking a retrial based on the evidence on record. Of
course since it has as one of the grounds of appeal being the judgment is against the
weight of evidence our duty as spelt out by chain of authorities, some of which are Koglex
Limited (No2) vrs Field(2000)SCGLR 175 and Djin vrs Musa Baako (2007-2008)1 SCGLR
686 is to review the whole of the record whether the trial judge had misapplied evidence
to the prejudice of the case of the appellant, in this case the plaintiff. If so, on a thorough
review of the evidence, to rectify the error setting aside the trial judgment either in whole
or in part or give judgment that we find appropriate based on the evidence on record. In
performing this appellate function, we take note of the authoritative position taken by
case law that we do not disturb findings of the trial court except where certain conditions
are found pervasive in the judgment. Is or are the findings of the trial judge supportable
by the records, has there been a misapplication of the law to the evidence, leading to a
wrong conclusion on an issue? Where any lapse is found it is the duty of an appellate
court to make its own findings and come to an appropriate conclusion supportable by
the evidence. The case of Agyenim Boateng vrs Ofori & Yeboah (2010)SCGLR 861 should
be sufficient reference for this principle

The other grounds of appeal are

“1. ………………..

2. The honourable court erred in law when it ruled that negligence leading to
the loss of plaintiff’s goods was not proven

3. The honourable court erred when it did not realize that the negligence of
the defendant was “res ipsa” and that it was this negligence that led to the
loss

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4. The honourable court erred when it concluded that the circuit court’s
acquittal of the employee who was charged with stealing also absolved the
employee of negligence”

In arguing the first ground of appeal counsel for the plaintiff agreed with the findings of
the trial judge that there was a contract between the parties for the provision of the
security. He also does not dispute the findings of the trial judge that there was in fact a
break in into the shop. We confirm these findings as acceptable and backed by the appeal
records.

If there was a contract for the provision of security and a security man was provided at a
fee and there was a break in then why did the trial judge decline to accept that there was
a duty of care owed the plaintiff which was breached entitling the plaintiff to damages?
This appears to be the main concern argued on behalf of the plaintiff. There was breach
of contract when the plaintiff’s worker was negligent in the performance of his duties as
a security guard. The negligence was “res ipsa”, counsel argued

That there was glass and burglar proof on the shop of the plaintiff was admitted by the
defendant in paragraph 6 of the amended defence.

Counsel argued further that there was a duty of care arising out of the contractual
relationship existing between the parties which duty of care the defendant’s worker
ignored leading to the theft in which case he defendants should be liable for the loss.

Counsel submitted further that the premises was under the management of the defendant
during the night of the theft and that if security guard had used proper care the theft
would not have occurred. According to counsel from the facts of the case the security
guard was negligent.

Counsel for the defendant on the other hand argued supporting the trial judgment that
the plaintiff did not led any evidence to proof the negligence he has alleged. Relying on
the case of Alhassan Kotokoli vrs Moro Hausa (1967) GLR 298 he submitted that for
negligence three elements should exist. That there was a duty, the duty has been breached

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arising out of which damages had ensued. He submitted that the negligence should have
been pleaded with the facts sought to be relied on in proof of the negligence. It is counsel’s
contention that it was not enough to allege negligence without showing in what respect
the security man was negligent. Relying on other 11 rule 8, he argued that negligence is
one such matter that ought to be raised on the pleadings to enable the other party react
to it and not be taken by surprise. In counsel’s own words:

“Apart from the contention above, no particulars of the allegation of negligence

was provided and no cogent evidence was adduced to prove same except to say
that because the guard was on duty when the alleged break in took place, he or
respondent was negligent.

Again, there was no evidence that the alleged loss was as a result of the guard
doing anything or failing to do something for which respondent ought to be
vicariously liable.

It is our submission that the appellant failed to woefully establish and prove the
tort of negligence against the respondent, and we pray this Honourable Court to
dismiss this ground of appeal and reaffirm the finding and reasoning of the trial
judge “.

Responding to the res ipsa reference made by the plaintiff’s counsel, counsel submitted
that even under this rule there should be evidence, even though not direct evidence, from
which the negligence would be inferred failing any explanation from the defendant. He
cited the cases of Nelson vrs Kludze(1965)GLR 537 and Hasnem Enterprises vrs
Electricity Corporation of Ghana (1998-99)SCGLR 288. It is the contention of counsel that
no such evidence was led by the plaintiff. Since the ambit of the contract was not specified
because there was no written contract it was for the plaintiff to lead evidence of what the
guard was supposed to do which he did not do in support of the allegation of negligence.
Counsel alluded to the fact that it was because one guard was not sufficient for the
plaintiff’s premises that was why she initially asked for 5 guards. To counsel, that was

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the more reason the plaintiff has the duty to tell the court what the guard, one guard, did
wrong for which he should be held to have been negligent.

On this same issue of negligence counsel submits that the complaint of the plaintiff that
the trial judge acquitted the defendant of negligence because the guard was acquitted in
the criminal trial is unfounded. Even though the trial judge made reference to the criminal
trial he did not state categorially that the acquittal in the criminal trial emphasized the
innocence of the guard and therefore not negligent.

How did the trial judge treat this issue of negligence for which these contending
submissions have been made before us?

After dutifully setting the stage for his judgment with appropriate case law on who bears
the burden of proof in respect of which issue, some of the cases he mentioned being
Zabrama vrs Segbedzi (1991)2 GLR 221 and Ackah vrs Pergah Transport
Ltd(2010)SCGLR 728, he alluded to the cases of Donogue vrs Stevenson (1932) AC 562
Heavens vrs Pender (1883)11Q.B.D and Home Office vrs Dorset Yacht(1970) Ac 1004 and
our local case of Edward Nasser &Co Ltd vrs Mc Vroom(1996-97)SCGLR 468 on the
principles of the tort of negligence and the nature of proof and concluded that:

“In this case, all that the plaintiff did on the allegation of negligence was the
statement in paragraph 15 of the statement of claim referred to supra. No
particulars of the allegation of negligence was provided and no cogent evidence
was adduced to prove same except to say that because the guard was on duty when
the break in took place he was negligent. To my mind particulars of the negligence
should have been provided and the facts should have been pleaded which together
prove that the damage or the loss the plaintiff says she suffered could not have
happened but for the negligence of the defendant’s guard”.

For this view the trial judge mentioned the cases of Hasnem Enterprise Ltd vrs Electricity
Corporation of Ghana (1998-99) SCGLR 288. Asante Kramo vrs Attorney

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General(1975)1GLR 319, Yamusah vrs Mahama(1991)1 GLR 549, Boateng vrs Scanship
Ghana Ltd Civil Appeal No J4/15/2013 of the 15th January 2014.

There is no doubt in our minds that the trial judge was apt in his references to the case
laws on negligence and nature and duty of proof required of the party making allegation
of negligence. As is the case in matters of negligence there was the need to establish that
there was a legal duty owed one to other, in our case, that the defendant owed the plaintiff
a legal duty. In our opinion the existing contract between the parties, albeit oral, imposes
a legal duty on the defendant to perform the functions the contract demands of it. If there
is any breach of this duty which follows in its trail any damage to the plaintiff the
defendant will be liable to make good the damages. Very critical in such negligent cases
is the breach of the duty owed the plaintiff by the defendant. The trial judge concluded
that there was no evidence from the plaintiff to establish any such breach. In our opinion
after reviewing the whole record of appeal was the trial judge, right? Were there no
particulars of the allegation of negligence provided? Were there no facts pleaded of the
allegation of negligence? And was there no cogent evidence adduced to prove the
negligence alleged?

But before we answer these questions it is worthwhile a little comment on the nature of
the claim plaintiff put before the trial court. The second relief he sought for was damages
for breach of contract. Within the pleadings he then introduces negligence and res ipsa.
Was he making a claim for breach of contract or his claim was based on negligence in
tort? We ask this question because the negligence and the principle res ipsa loquitor are
usually associated with tort and not contract. The contract between the parties was to
assign a security man to keep watch over the shops for a specified period. The security
man was duly assigned. At that point wouldn’t it be said that the contract had been
performed? If he performed the contract negligently would any loss arising out of the
negligent performance still be under the contract? For a better appreciation of this issue
we provide an instance. Where one joins a trotro bus to Ada there is a contract of carriage
to convey to Ada. But if on the way to Ada the driver was negligent in the performance

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of his duty as a driver the relief open to any body injured arising out of the negligent
driving becomes a matter of tortious liability in negligence and no more under the
contract. It is from this angle we examine this appeal.

Even though Order 11 rule 8 which demands specifics of pleadings and rule 12 which
demands particulars of pleadings to be provided in respect of certain claims does not
mention negligence, the authorities are agreed that allegation of negligence as a rule
should provide particulars of the negligence to enable the other party and the court to
know the nature of the negligence alleged. As earlier mentioned in this judgment the
plaintiff pleaded in paragraph 13 to 15 of his statement of claim as follows:

“13. Plaintiff will contend that it was found that the thieves broke through
small windows at the back of the shops which were fully burglary proofed
and therefore the noise created by the breaking of the burglary proof should
have been heard by the defendant’s guard

14. The plaintiff will further contend that the frontage of the shop is all glass
with burglar proof doors and therefore the guard even in front of the shops
should have seen any intruder into the shop and should have raised the
necessary alarm.

15. The plaintiff will therefore contend that the burglary occurred as a result
of the negligence of defendant’s guard”.

What should amount to particulars or sufficient particulars in pleadings should be a case

to case determination. It should therefore not be expected that particulars of negligence
in a running down case should follow the same details as that of other allegations of
negligence. In our view what matters is whether the allegations of negligence are clear
and definite facts have been provided in the pleadings as to give notice to the other party
the facts on which that party wants to rely in proof of that allegation. Does the pleadings
of the plaintiff meet these criteria?

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We think paragraph 15 of the pleadings should be read and understood as flowing from
the earlier paragraph 13 and 14. To maintain, as the trial judge did, that the only allegation
of negligence the plaintiff has provided for is paragraph 15 would be an over titrated
reading of these pleadings. Paragraph 13,14 and 15 should be read together. With that
understanding it should not be difficult to appreciate that the plaintiff has provided
sufficient facts in her pleadings from which she is notifying the defendant and the court
what she intends relying on for the allegation of negligence. She is alleging that by the
nature of the security features she has fixed on the building and the doors any intruder
who intends breaking into the shop either from the rear or the front would have to break
lose the burglar proofing fixed in the windows. Such forcible breaking should be heard
in the coolness of the night by any security man assigned the duty of keeping watch over
the property if the security man was attentive with eyes and ears open. Similarly, the
stores have all glass frontage any security man attentive, and with eyes open and present
on the sight should have noticed any intruder within the shops. Unlike the trial judge,
we are of the view that the plaintiff’s pleadings provide sufficient particulars of
negligence she is making against the defendant, in the circumstances of this case.

It is worth noting that even in cases where pleadings are demanded by the rules the
authorities are now agreed that where particular pleadings are required and there is
failure to particularize the allegation but evidence of the allegation is lead without
objection the court will not close its eyes to such evidence. Ref to the cases of Edward
Nasser & Co Ltd vrs Mc Vroom(1996-97)SCGLR 468, Amuzu vrs Oklika(1998-99)SCGLR
141, Apeah & Another vrs Asamoah(2003-2004)1 SCGLR 226. We are of the view that the
principles deducible from these cases is applicable to the issue of negligence, particularly
where evidence of the allegation of negligence was led without objection as will be shown
presently.

Pleadings are said not to be evidence except where admissions are made by the opposing
party. Evidence needs therefore to be led to discharge the evidential duty cast on the
party who bears that duty. In this case where the plaintiff has alleged negligence, she

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carries the duty of establishing same. But what nature, sufficiency or quality of evidence
is needed to discharge the burden depends upon the facts and circumstances of each case.
This position was made clear in cases like Klu vrs Saoud(1975)1 GLR 50, Takoradi Flour
Mills Vrs Samir Faris (2005-2006)SCGLR 882,GPHA vrs Nova Complex (2007-2008)
SCGLR 806. It is for this reason the authorities are agreed that in discharging a burden of
proof it is not the number of witnesses but the quality of the evidence. A single witness
can make the case of a party depending upon the circumstances of the case.

In her evidence in chief via her witness statement found at page 24 of the record

“… It was found that thieves broke through small windows at the back of the
shop and the wholesale leading to the toilets attached to the shops which were
fully burglary proofed and therefore the noise created by the breaking of the
burglary proof should have been easily heard by the guard. Attached is exhibit G
showing the burglary proof windows broken by the thieves. Again the frontage of
the shops is glass with burglary proof doors and therefore a person in front of the
shop could easily see any intruder in the shop. See exhibit A. It is obvious therefore
that the burglary occurred as a result of extreme negligence of the defendant’s
guard or as the police investigator points the burglary occurred with the
complicity of the guard”.

That there was glass and burglar proof on the shops of the plaintiff was admitted by the
defendant in paragraph 6 of the amended defence. The above quoted evidence in chief
concerning the burglarproofing, the exhibited pictures of various parts of the building,
including its frontage, the point of the burglary and what the guard should have done
was not challenged at all in cross examination. Having accepted this evidence what more
evidence is expected of the plaintiff to prove the allegation of negligence within the
circumstances of the case? If the guard failed to see and hear, as testified to by the
plaintiff, when in all the circumstances he should have seen and heard, as will be expected
of a security man by any reasonable person and no evidence is offered in contrast to this
evidence, we are of the view the plaintiff has led sufficient evidence to establish the

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negligence she alleged. It is worth noting that the matters of the theft were all in the deep
of the night when all not on any night duty should be asleep. Would it be reasonable to
expect the plaintiff, for example, to lead evidence to establish that the guard was asleep
or that he left his post to spend the night not at his duty post but somewhere else? Who
could be around to testify to this fact? What he was doing or where he was during the
hours of the theft can be testified to only by the guard. We are of the opinion the plaintiff
has led sufficient evidence from which the negligence of the defendant’s guard should be
inferred. We make such inference and find that the guard was negligent in the
performance of his duty of providing adequate security to the shops of the plaintiff.
Following from this conclusion the defendant would be liable for any loss arising out of
the theft. In coming to this conclusion, we did not lose sight of the defendant’s witness
evidence that the company agreed to protect only the frontage of the shops. We did not
believe this witness. She told the court that before the agreement took of she inspected
the whole building including the back. We are of the view that if she inspected the back
of the building also and not only the front then it is more probable than not that the
company’s duty included security for the rear of the building.

The next issue to determine is was there any loss occasioned the plaintiff? If there was
what was the loss.

On reading the appeal records, particularly in respect of the plaintiff’s evidence in a bid
to proof the loss which she pleaded as amounting to GHC458,500.00, we found no reason
to question the findings of the trial court on his conclusion that the plaintiff failed to proof
such loss, noting that her claim sounded in special damages which has to be specifically
proved. The trial judge said at page 193:

“Indeed, as far as the loss the plaintiff says she incurred is concerned, in the
opinion of the court that burden was not discharged because repeating the
erroneous figures thrown at the court like “confetti” stated in the writ of summons
in the absence of any cogent evidence to the effect that the said goods were stocked
in the shops at a particular time together with a proper inventory to confirm same,

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it remained unproven by the plaintiff. In all the circumstances of this case, I am

of the view that the total sum of money claimed to have been the value of goods
lost by the plaintiff as a result of the burglary stands comparatively unreasonable
and does not appear to me that even if the defendant were to be found liable, this
court can make that order against it. With the greatest respect, I am inclined to
agree with counsel for the defendant that the figure is fabricated because there is
no basis as to how the plaintiff arrived at the said figure of GHC458,500.00”.

At page 192 he stated that he found no connection between the pictures tendered by the
plaintiff and the alleged stolen goods and that the pictures do not tell how many goods
were stolen. There is exhibit J, an audit report for 2nd April 2016, tendered by the plaintiff
indicating the stock value amount of GHC27,736,665.00. Again, the trial judge could not
find how this exhibit translated to establish the loss of GHC458,000. We are in agreement
with his reasoning and conclusion that the plaintiff failed to establish the loss of
GHC458,500.00.

But in such situations where there was loss but which the party failed to prove the
authorities have awarded nominal damages. In this instant case we have found that there
was a break in. It would be unreasonable to ask whether there is evidence that the thieves
took away anything from the shop when they broke into it. In all probability they did.
What quantity did they take away? Any proffered answers will be guess work. It is for
this reason and such circumstances the authorities award nominal damages. We refer to
the cases of Lizor Ltd vrs Boye& School of Domestic Science(2013-2014) 2 SCGLR 889
and Antie & Adjuwuah vrs Ogbo (2005-2006)SCGLR 494 All things considered we think
the amount of GHC 40,000.00 should be sufficient as nominal damages to mitigate the
loss to the plaintiff.

From the foregoing we uphold the appeal in terms of this judgment and set aside the trial
judgment.

MENSAH JA:

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This is an appeal from the judgment of the High Court, Accra delivered 20th June 2018.
The notice of appeal filed by the plaintiff/appellant whom I shall hereinafter simply refer
to as the appellant, appears on pp 202 – 203 of the record of appeal.

I have critically read the lead judgment of my esteemed brother Ofoe JA and need to put
it on record that I am in full agreement with his findings and the conclusions reached.
However, I need to add a few words of my own, in relation to trial court’s findings on
negligence; the vicarious liability of the respondent, and the award of damages.

I must say that Ofoe JA has sufficiently set out the facts of the case in the lead judgment
and it shall therefore be idle if I repeated them herein.

The grounds of appeal as recited in the notice of appeal are that:

“a. The judgment was against the weight of evidence

b. The honourable court erred in law when it ruled that negligence

leading to the loss of plaintiff’s goods was not proven

c. The honourable court erred when it did not realize that the negligence of the
defendant was “res ipsa” and that it was this negligence which led to the loss

d The honourable court erred when it concluded that the

Circuit Court’s acquittal also absolves the employee of negligence”.

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From the facts, it is common ground that the plaintiff engaged the services of the
defendant/respondent company whom I shall presently refer to as the respondent, to
keep watch over her shops at East Legon, Accra. It is also undisputed that the parties
entered into an oral agreement to govern the contract. Pursuant to the agreement, the
respondent provided a security man to watch over the appellant’s shops. However, on
that fateful day burglars broke into the shops and made away with some goods therein.
It was on that account that the appellant sued.

The learned trial judge in his judgment as appearing on p. 187 of the record of appeal
made a finding of fact that there existed a contract between the parties whereby it was
agreed that the respondent provide a security at the shop of the appellant. The court was
also satisfied with the evidence that there was a break-in into the appellant’s shop.
However, the trial court ruled against the appellant as having not proved negligence on
the part of the respondent. indeed, the court stated that the appellant never gave any
particulars of negligence she complained of.

I have critically studied the pleadings the appellant filed and am in agreement with my
learned brother that the pleadings contain sufficient particulars of the negligence
appellant complained of.

From the available evidence, I find that the burglary that occurred could be attributed to
the negligence of the security man the respondents provided under the contract. It was
their duty to provide a duty-conscious security man to have protected the appellant’s
shop for which she provided consideration.

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It is not in any serious dispute that the incident took place in the dead of the night and
the evidence was that the thieves broke into the shop through back windows that had
iron burglar proofs. At the time of the night the security man could reasonably have
foreseen that thieves could break into the shop. It was therefore fair and reasonably to
have been patrolling thereat or if he heard the least unusual noise, to shout to attract
attention in the neighbourhood so as ward off the thieves. There is nothing on record to
show that he did any of those. His explanation was that he was placed in front of the
shop. Thus, it was not his business to go round the premises.

Negligence in law, has been defined to mean:

“……………the omission to do something, which a reasonable man, guided upon those

considerations, which ordinarily regulate the conduct of human affairs, would do, or doing
something, which a prudent and reasonable man would not do. The defendants might have
been liable for negligence, if, unintentionally, they omitted to do that which a reasonable
person would have done, or did that which a person taking

reasonable precautions would not have done.” 1

1 Blyth v Birmingham Waterworks (1856) 11 Exch. 781 Baron Alderson held in the case that
the standard demanded is thus not of perfection but of reasonableness. It is an objective standard
taking no account of the defendant’ incompetence – he may do the best he can and still be found
negligent.

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Now, to say that a person is negligent in law is another way of saying that he owes a duty
of care to another and that the duty has been broken. In other words, there has been a
breach of that duty and the breach resulted in damage to the person/victim. The duty
varies with various factual situations, any way.

Negligence as a tort, according to Winfred & Jolowicz on Tort, 13th ed @ p.72, is the breach
of a legal duty to take care which results in damage, undesired by the defendant, to the
Plaintiff. The authors give the basic ingredients as:

“(a) a legal duty on the part of A towards B to exercise care in such conduct of A as
falls within the scope of the duty;

(b) breach of that duty; and

(c) consequential damage to B.”

It bears stressing that it is not for every careless act that a person may be held responsible
in law or even for every careless act that causes damage. He will only be liable in
negligence if he is under a legal duty to take care.

Let me say for a moment that text-writers and academics seemed agreed that the first
attempt to formulate the general principle of negligence was made by Brett, M.R. in
Heaven v Pender (1883) 11 QBD 503 @ 509. However, the most important generalization
is that of Lord Atkin in the classical case of Donoghue v Stevenson (1932) AC 562 where
the “neighbour principle” was espoused.

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In Donoghue v Stevenson (supra) the House of Lords held that the manufacturer owed a
duty to a consumer to take care that the bottle of ginger did not contain noxious matter
and that he would be liable in tort if that duty was broken. At p. 580 Lord Atkin in
formulating the generalization posited:

“………… [t]he rule that you are to love your neighbor becomes, in

law, you must not injure your neighbour; and the lawyer’s question who is my neighbour?
receives a restricted reply. You must take reasonable care to avoid acts or ommission which
you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is
my neighbor? The answer seems to be – person who is so closely and directly affected by
my act that I ought reasonably to have them in contemplation, as being so affected when I
am directing my mind to the acts or omissions which are called in question.” (emphasis
supplied)

For a court to make any determination in any given case as to whether the defendant
owes any duty of care to the plaintiff, it has to consider the exact legal relationship
between the parties. In the instant appeal, the appellant contracted with the respondent
to provide security services to her shop. Pursuant to the agreement, the appellant paid
money to the respondent as consideration for those services. So, as the trial court rightly
found, there existed contractual obligations on the parties by reason of that business
agreement they entered into.

Admittedly, on general principle, not every careless act that a person commits causes
damages and may be held responsible in tort. However, in the present suit the
respondents were under a duty of care to the appellant having regard to the existing
contractual obligations between them. Indeed, it was foolhardy for the respondents to

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argue that because the security was placed only in front of the shop he cared less about
theft that went at the back or the side of the shop. The windows through which the
thieves entered and looted the shop forms part of the whole shop.

Having regard to the foregoing, and on the law, I agree that the learned trial judge though
stated the law correctly, nevertheless misapplied it to the case. I hold that the
respondents’ servant was negligent. Therefore, the respondents were vicariously
negligent for the actions and or inactions of their servant. On general principle, a master
is vicariously liable for the acts and or omissions of his servant working within the scope
of his employment. In Staveley Iron Co. Ltd v Jones (1956) A.C. 627; (1956) 1 All ER 403
Lord Reid is credited with that statement of law propounded as follows:

“………………… It is trite rule of law that an employer, though guilty of no fault himself,
is liable for damage done by the fault or negligence of his servant acting in the course of
his employment.”

“The Lord Steyn’s test”

In determining whether a person was in course of his employment, the test that the courts
have consistently applied is what is commonly termed “The Lord Steyn’s test”. It is
whether the servant was doing an act of a kind not authorized by the master or it is a
wrongful performance of an authorized act. The House of Lords in adopting and
applying the test in Lister & ors v Hesley Hall Ltd (2001) 2 All ER 969 held:

“When determining whether an employer was vicariously liable for an employee’s

wrongful act, concentration should be on the relative closeness of the connection between
the nature of the employment and the particular tort.”

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The term, “in the course of employment” is ambivalent. There is no hard and fast rule as
to its meaning since its application depends on each case and its peculiar facts. Where
the worker acted outside the scope of his employment the master has been held not
vicariously liable. In Yortuhor v Brako & anr (1989-90) 2 GLR 429 the court stated the law
as follows:

“The master was only liable where the servant was acting in the

course of his employment. If he was going out of his way against

his master’s implied commands, when driving on his master’s

business, the master would be liable; but if he was going on a frolic of his own without
being at all on his master’s business, the master would not be liable……………”
[emphasis mine].

Given the evidence, I hold that the respondents were negligent. This ground of appeal
therefore succeeds.

I now come to address the award of damages.

Under common law, the remedy that may be available to the victim of a tort like
negligence is an award of damages. The award ought to put the victim in the same
position as he was prior to the accident. Explaining the basis for the award, Lord Scoutt
is credited with that statement of law that says:

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“The general principle ……………… is that the tribunal [court] should award the
injured party such a sum of money as will put him in the same position as he would
have been if he had not sustained the injuries.” 2

It is of interest however, that the appellant in the instant appeal per her evidence claimed
that she lost Four Hundred and Fifty Thousand Five Hundred (Gh) Cedis (Ghc458,500.00)
being cost of goods stolen from her shop as a result of the thieves breaking into the shop
and carting away goods worth in that value. Undoubtedly, this relief is in the nature of
special damages.

As a general rule, a claim for special damages ought to be particularized and proved
strictly. See: Bisi & ors v Tabiri (1984-84) GLR. However, where the special damage was
not strictly proved but there was evidence led on record to sustain it, on the authorities,
the claim ought not be dismissed but that the claimant must be awarded nominal
damages on arbitrary basis. See: Yirenkyi v Tarzan International Transport (1962) 1 GLR
75. See also: Ahenkora v Moubarak (1972) 2 GLR 429.

As the trial judge observed in his judgment, the appellant only threw the figures at the
court without substantiating them. However, the overwhelming evidence is that theft
occurred and the appellant suffered damage in the result. Having not proved the special
damages strictly, he is entitled to nominal damages for which I agree that an award of
Ghc40,000.00 to the plaintiff is appropriate.

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