Division: IN THE SUPREME COURT
Date: 22 JUNE 1964
Before: SARKODEE-ADOO CJ, OLLENNU AND ACOLATSE JJSC
JUDGMENT OF ACOLATSE JSC
This is an appeal from a judgment of Bannerman J. delivered at Kumasi on 23 February 1963, in favour of the plaintiff-respondent, hereinafter referred to as the plaintiff. The proceedings began with a claim for £G10,749 5s. 0d. damages against the appellants, hereinafter referred to as the defendants, for injuries received and suffered by the plaintiff in consequence of the alleged negligence of the second defendant in the driving of a timber truck, property of his employers, the first defendants, a firm of timber merchants.
The accident occurred near a place called Nkasiem on the Goaso-Kumasi motor road whilst the second defendant was driving the timber truck from Goaso towards Kumasi and the plaintiff was driving an Opel Caravan from Kumasi towards Mim. Particulars of the negligence the plaintiff relied upon are set out in paragraph (4) of his statement of claim and are as follows:
“(a) The second defendant was driving at a speed which was too fast in the circumstances.
(b) The second defendant failed to have any proper lookout or have any sufficient regard for other traffic on the said road.
(c) The second defendant drove on the wrong side of the road.
(d) The second defendant collided with the plaintiff’s car on the said road.”
The defendants denied that the second defendant drove negligently as alleged or at all; they pleaded, on the contrary that the accident was caused or contributed to, by the negligence of the plaintiff which consisted inter alia of:
“(i) Driving too fast.
(ii) Failing to maintain proper steering control while passing the defendants’ vehicle AS 8841.
(iii) Failing to maintain a proper lookout while passing the defendants’ vehicle AS 8841.
(iv) Driving while under the influence of alcohol.
(v) Failing to manage his car AN 4449 so as to avoid a collision with the back tyres of the defendants’ vehicle AS 8841.”
The evidence of the plaintiff as to how the accident occurred was given by the plaintiff and supported by his second witness, his son, who was with him in the car at the material time. The gist of that evidence is that on the day in question, 29 December 1960, he the plaintiff with his son and a nephew travelled in his, the plaintiff ‘s Opel Caravan, from Kumasi going to Mim; they arrived at a place called Nkasiem which is on a small hill; before he could begin to descend the hill he saw a vehicle ascending the hill and having its lights on; he, the plaintiff, immediately drew up well to its near side of the road on top of the hill to allow the vehicle to pass. The oncoming vehicle turned out to be a timber truck; it was travelling in a zig-zag manner, and after its cab had passed the plaintiff ‘s stationary car, its near offside wheel struck the plaintiff ‘s car, damaged it, and rendered the plaintiff unconscious.
On the contrary the second defendant and his apprentice who was with him on his vehicle on the day of the accident, gave evidence that the plaintiff ‘s car and the defendants’ truck were both in motion passing each other, that the cab of the defendants’ truck is twelve feet long and its trailer thirty-two feet long and that after the cab of the truck had passed clear of the plaintiff’s car they heard and felt a bang and the second defendant thereupon stopped the truck just where it was on the road at the time. They formed the impression that (not realising that the truck had a long trailer) the plaintiff, after passing the twelve feet cab of the truck swerved to his right to get on to the crown of the road and accidentally collided with the rear right wheel of the trailer.
Needless to say that the onus was upon the plaintiff to prove the negligence he relied upon and if he failed to prove it his claim must fail.
The trial judge found for the plaintiff because he said he was “satisfied on the whole evidence that the accident was caused by the negligent driving of the second defendant.” To come to this conclusion, the learned judge said (on page 40 lines 22-35 of the record):
“According to the policeman who went to the scene, the width of the road is twenty-five feet. The width of the timber truck is eight feet five inches and that of the Opel Caravan is seven feet. The Opel Caravan did not make any tyre marks. There was broken glass which came from the Opel Caravan. A quantity was concentrated on large area and part scattered on the road. There were tyre marks of the timber truck measuring sixty feet seven inches. Facing Kumasi the tyre marks were from right to left. From the broken glass to the Caravan is twenty-one feet. The
broken glasses were [sic.] fifteen feet from the near side of the road facing Kumasi. I do not believe the broken glass fell from the plaintiff ‘s cloth. Nor do I believe that the plaintiff was travelling at full speed when he swerved and hit the timber truck.”
It was submitted for the defendants that having accepted the evidence of the police sergeant, the third witness for the plaintiff, the learned judge should have dismissed the plaintiff’s case because the evidence given by that witness as to the relative positions of the two vehicles after the accident disproved the evidence given by the plaintiff and his son that his vehicle was stationary at the time of the collision because if the plaintiff ‘s car had been stationary and had been struck, it would move backwards from the point of impact or at the worst it would remain in its place but would certainly not move forward.
The evidence given by the police sergeant, the plaintiff’s third witness, on the relative positions of the vehicles after the accident is as follows, “The Opel Caravan was eighty-one feet seven inches from the timber truck” which he explained in cross-examination as follows, “From the Opel Caravan to the broken glass is twenty-one feet. From the broken glass to the timber truck is sixty feet seven inches.” It means that the Opel Caravan moved twenty-one feet forward from the point of impact, which could not have happened if it was stationary at the moment of the impact. This circumstantial evidence therefore destroys the oral evidence of the plaintiff and his son on that issue.
Again the finding of the learned judge that the broken glass was fifteen feet from the near side of the road facing Kumasi is fantastic. The evidence given by the police sergeant about the broken glass is as follows:
“I saw the broken glass on the road. A quantity was concentrated on a large area and part scattered on the road.” If the broken glass was concentrated over a large area how can it be said that it was fifteen feet from the near side of the road facing Kumasi? Learned counsel for the plaintiff found it very difficult to support that finding of the learned judge.
Obviously the learned judge had in his mind a certain spot on the road which was spoken off by
plaintiff’s third witness which he said was given to him as the point of impact. The witness did not disclose the identity of the person who located that point to him; but it would appear from the context of the evidence that that undisclosed informant was a brother of the plaintiff who was not present when the accident occurred but who accompanied the police to the spot on the morning after the accident. That evidence of location of the point of impact is therefore inadmissible and the court should not have acted upon it. The second defendant immediately challenged that fact at the moment when the spot was pointed out to the police. The only admissible evidence which located the point of impact is that given by the second defendant and that is a point sixteen feet from the near side of the road facing Mim, more than half the width of the road which the police gave as 25 feet.
Thus none of the grounds upon which the learned judge gave judgment for the plaintiff can be supported from the evidence. On the contrary the evidence of the defence which he rejected is fully corroborated by the circumstantial evidence and is the more probable of the accounts given by the two sides as to the cause of the accident. An important piece of evidence in this regard is the official report on the accident which the police transmitted to the insurers of the first defendant firm after they had concluded investigations into the cause of action. The document was tendered by the defence through the plaintiff ‘s third witness, the police sergeant, and was admitted and marked exhibit 1. The relevant part of the report is as follows:
“(7) BRIEF DETAILS OF ACCIDENT:
Nana Kofi Boateng was in charge of Car No. AN 4449 driving from Kumasi direction towards Goaso and driver George Otu Bibio was in charge of timber truck No. AS 8841 from Goaso towards Kumasi. Between miles eighty and eighty-one, the two vehicles were passing each other. The road was dusty and when the driver of the car had passed the cab of the timber truck, he swerved his vehicle to the road and the off side mudguard of the car hit the off-side trailer tyres of the timber truck. The time was between six and seven p.m.
(8) WILL POLICE ACTION BE TAKEN AGAINST PARTIES CONCERNED—IF SO, PLEASE GIVE DETAILS:
It appears accidental and none of the drivers is to be blamed as the road was very dusty and visibility was poor. The case docket is being forwarded to the A.S.P./Sunyani for his ruling, please.
(9) NAME AND NUMBER OF REPORTING POLICE OFFICER: No. 8093 D/Cpl. J. K. Appiah.
Authenticating Stamp: GHANA POLICE GOASO.”
The learned judge completely failed to direct his attention to that exhibit and its relevancy to the issues he had to try.
Finally the learned judge failed to direct his attention to the negligence relied upon by the plaintiff to sustain his claim; consequently he failed to realise that there was no evidence led by the plaintiff to establish any part of the negligence pleaded by him. Consequent upon this misdirection the learned judge gave a judgment which cannot be supported upon any fact or law, causing a miscarriage of justice.
For these reasons the appeal is allowed, the judgment of the High Court is set aside including the order as to costs. The damages and the costs and all sums paid in consequence of that judgment should be refunded to the appellants. For the judgment of the court below is substituted the following: the plaintiff’s claim is dismissed and judgment entered thereon for the defendants with costs fixed at £G78 15s. 0d. The appellants will have their costs in this court assessed at £G82 6s. 6d.
JUDGMENT OF SARKODEE-ADOO CJ
I agree.
JUDGMENT OF OLLENNU JSC
I also agree.
DECISION
Appeal allowed.
N.A.Y.
