COURT OF APPEAL, ACCRA
Date: 30 JULY 1974
SOWAH JA
CASES REFERRED TO
(1) McNay v. Alt (1892) 66 L.T. 832.
(2) Bray v. Palmer [1953] 1 W.L.R. 1455; 97 S.J. 830; [1953] 2 All E.R.1449, C.A.
(3) Grunshie v. Yeboah, Court of Appeal, 1 May 1967, unreported; digested in (1967) C.C. 96.
(4) Mbadiwe v. Yaya (1954) 14 W.A.C.A. 613.
(5) Stewart v. Hancock [1940] 2 All E.R. 427; 56 T.L.R. 572; 84 S.J. 440, P.C.
NATURE OF PROCEEDINGS
APPEAL against a decision of a trial High Court judge wherein he gave judgment for the plaintiff in a claim for damages for negligently damaging the plaintiff ‘s vehicle. The facts are sufficiently stated in the judgment of Sowah J.A.
COUNSEL
Annancy (Hughes with him) for the appellant.
P.A. Adjetey (Amua-Sekyi with him) for the respondent.
JUDGMENT OF SOWAH JA
This is an appeal from the judgment of the High Court, Sekondi, whereby the court entered judgment for the plaintiff and awarded very substantial damages for damage to his vehicle and consequential loss of earnings from the date of the accident to the day the learned judge delivered his judgment.
The essential facts of the case appear to be by themselves quite simple, but these have been complicated by a number of incidents not directly concerned with the accident. On 28 January 1971 the plaintiff s vehicle No. WR 8691 driven by his servant, Peter Kingsley Cromwell, was involved in a collision with the defendant’s vehicle No. WR 5010, on a curve near Gomoa Assin on the Accra-Takoradi road; the vehicles were being driven in opposite directions and the time of the accident was 10.00 p.m. There were in the plaintiff s vehicle, the driver, a mate and a passenger, the latter two sitting in front and alongside the driver. After the collision the occupants of the plaintiff s vehicle got out, only to find that the driver of the other vehicle had died. They found no other person in that vehicle. A report was made to the nearest police post and soon after policemen arrived at the scene that night.
In the action which followed, the plaintiff alleged that the cause of the collision was the negligence of the defendant’s deceased driver, and pleadings followed the usual pattern in these cases. The defendant denied negligence and pleaded that the accident was caused by the fault of the plaintiff s driver and gave particulars of the alleged fault; further counterclaimed. Issues were accordingly joined as to whose negligence
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caused the collision. The plaintiff relied for his case on the evidence of his driver and the persons with him in the vehicle. The driver’s story is short and the important part of it may with profit be reproduced herein:
“When I was nearing Gomoa Assin I saw another vehicle coming from the opposite direction. I dipped my lights. The other vehicle had on its full lights. I saw the light was travelling towards me. I then parked on the nearside of the road. I then fell in my vehicle. Then the other vehicle hit my vehicle. I had to pass the other side to get out of my vehicle. The two persons sat in the front with me. We all got out and thought the other vehicle had gone. We saw people coming from the village. The other vehicle stopped about ten yards away from me. The other driver sat in the vehicle. His side was damaged. We called for him but he did not answer. We forced the door open and found the driver dead. He was alone.”
(The emphasis is mine.)
His evidence was in a great measure supported by his mate and the passenger though they provided several embellishments to it, examples of which were that when the driver stopped he hooted his horn apparently to warn the other driver; the latter himself never gave such evidence. The passenger also said that he first sighted the vehicle some 150 yards away and that after the accident, the vehicle stopped about 75 yards away from their vehicle. The other witnesses could not tell the distances when they first saw that vehicle for the simple reason that it is always difficult to give such distances at night especially with lights dazzling from the opposite direction.
The plaintiff ‘s version of the cause of accident was, therefore, the defendant’s driver’s failure to dip his lights, and colliding with the plaintiff s vehicle when it was properly parked on its nearside; further the defendant’s driver’s failure to control the vehicle or to swerve to avoid the accident. The defendant was in obvious difficulties as the only person who could give an eyewitness account of the accident was his dead driver. Accordingly he suborned a witness to give evidence on his behalf. The judge, rightly in my view, rejected the evidence of this witness and stigmatised him as a person brought forward to commit perjury. The defendant need not have called this witness and the less said of him the better.
The defendant had therefore to rely on the police officers who visited the scene and took measurements. The first police witness was Inspector Hamilton Christopher Assiama, who stated that he supervised the proceedings. He stated:
“I met a constable called A. K. Nifa at the scene. [Nifa identified]. I met the defendant Baiden at the scene. The driver of WR 8691 was also there and so was the plaintiff Ansah. I was present when measurements were taken. Constable Nifa was responsible for the taking of the measurements. He was in charge of the case. I saw him measure the width of the road. The width of the road was 21 feet. The only person who pointed the point of impact was the driver of WR 8691. He corroborated the point he pointed out to us by broken glass and
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trafficator light which we found at the spot. WR 8691 which was facing Accra occupied 10 ft. 9 ins. from its near side to the point of impact. The other vehicle which was facing Cape Coast direction would occupy 10 ft. 3ins. Constable Nifa drew a sketch. I did not ask anyone to sign the sketch. The plaintiff’s driver refused to sign the sketch. During the measurements the defendant was trying to show us some other places. I told Nifa not to mind him because he was not there. In my presence the plaintiff ‘s driver did not sign the sketch. Constable Mensah took photographs of the scene in our presence. I left for Winneba. When I went to the scene I saw that there was a diversion of the road when facing Cape Coast through the bush to join the main road.
Cross-examination:
The defendant pointed to a spot as a point of impact but I did not accept it. The point of impact which Baiden the defendant pointed was not the one measured. Where the plaintiff ‘s first witness pointed was where we agreed. There was a heated argument between the plaintiff’s driver and the defendant. The argument was over where the point of impact was. The plaintiff was there when measurements were taken. I am not aware that he was sent to Ngrisi to bring a tape. The tape measure we used was brought from Ngrisi. Nifa is from Ngrisi Police Post. The broken glass was scattered on some portions of the road. I did not hear Nifa ask the plaintiff’s driver to sign the sketch. I heard the plaintiff’s first witness say that he would not sign the sketch. He did not give us his reason that the point of impact which he reached was not the one on the sketch. He did not agree that the sketch was an accurate drawing.”
Constable Kwame Nifa was the policeman actually in charge of taking the measurements and gave evidence in similar vein. There was yet a third policeman whose job was to take photographs but he too indicated that he observed the taking of the measurements. After a sketch of the area had been drawn up the plaintiff s driver refused to sign the sketch and his reason was that the police had not indicated the point of impact shown by him and had accepted the defendant’s.
The police denied that they accepted anything pointed out to them by the defendant and maintained that they completely ignored him. They stated further that during the taking of measurements the defendant and the plaintiff s driver were all along quarrelling and that when the driver refused to sign the sketch he gave no reasons.
In a reserved judgment the learned judge accepted the case of the plaintiff and entered judgment as aforesaid. It is from that decision that this appeal has been lodged.
At the hearing of the appeal Mr. Annancy, counsel for the appellant, sought leave to adduce fresh evidence, effect of which is that the writ of summons initiating this suit was a nullity inasmuch as it has not been sealed as provided for in Order 5, r. 3 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), which reads:
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“Every writ of summons issued out of the Registry of any Divisional Court, shall be sealed by the Registrar of the Court issuing the writ and shall thereupon be deemed to be issued.”
The court after consulting with both counsel decided that there was no need for fresh evidence to be led and that it could itself look at the writ, because if the allegation were true, it would strike at the foundation of the whole of the suit and the whole proceedings would itself be a nullity. At this stage the original writ was produced and on it there was engraved the seal of the court. Mr. Annancy, still undaunted, maintained that since the seal was not tested to by the proper officer, the writ was still a nullity.
It is not disputed that the court’s seal appears on the writ and bears the date on which it was issued; there was further no dispute that proper fees had been paid and the date shown on the receipt evidencing payment of fees, corresponded with that on the writ; there was, however, no signature testing the seal as is often the practice. I have not been able to find an authority directly on this matter and no authority was cited by counsel but I think an analogy can be drawn from the case of McNay v. Alt (1892) 66 L.T. 832, the headnote of which sets out briefly the facts and the decision. It reads:
“A writ of summons was issued complying in all respects with the requisites prescribed by the General Orders of the High Court, with the exception of an inaccuracy in the tests, the omission being the name of the Lord Chancellor: the words ‘witnessed Lord High Chancellor’ were attached, but not the name ‘Hardinge
Stanley, Baron Halsbury. ’
Held, that the writ so issued was good.”
I think though there was an omission by the issuing officer to test the seal that omission was not fatal and the writ issued was good. Accordingly this point fails.
Mr. Annancy, however, raised very substantial grounds of appeal when he indicated that the learned judge failed to consider or inadequately considered the whole of the evidence before him. The learned judge after reviewing the evidence, made the following observations:
“The defendant called a police inspector, the constable in charge of the case and the police photographer who went to the scene after the accident. The nature of their evidence was that measurements were taken after a point of impact was shown by the plaintiff’s first witness, the driver of the plaintiff ‘s vehicle. Their evidence established the fact that the width of the road measured 21 feet. That there was disagreement as to the point of impact shown on the sketch exhibit 1 and, therefore, the plaintiff’s first witness Cromwell refused to sign it. Broken glass or other debris which could have assisted to establish the point of impact was scattered in the middle portion of the road. So far as the photographer was concerned he tendered the photographs he took of the scene.”
[p.412] of [1974] 2 GLR 407 He went on:
“The important issue of fact for consideration by me is whether the accident between the two vehicles was the fault of the plaintiff’s driver or the defendant’s driver. The eyewitnesses in the plaintiff’s case were his driver Cromwell, the mate Mohamed Braimah and Kojo Labisse the passenger in the vehicle. Their evidence is clear and unmistakable. The driver of the vehicle on which they were travelling being apprehensive of danger because the on-coming vehicle had failed to dip its lights, stopped on its nearside and the other vehicle which was the defendant’s vehicle hit theirs and went further down some yards before stopping.
The defence case is made up of persons who were not eyewitnesses to the accident, that is, the defendant, the police inspector, Constable Nifa and the police photographer on the one hand, and Essel who claimed he was the mate in the defendant’s vehicle on the other.
The evidence of the defendant, the police inspector and Constable Nifa was that the plaintiff’s first witness Cromwell who was the driver of the plaintiff’s vehicle pointed to a spot in the road as the point of impact. This according to them was marked on the sketch, exhibit A. They said there was an argument between the plaintiff’s first witness Cromwell and the defendant, and this resulted in Cromwell refusing to sign the sketch to depict the true spot indicated by him as the point of impact. There was no apparent tangible reason given by the defendant, the inspector and Constable Nifa for Cromwell refusing to sign the sketch. In fact Constable Nifa said the defendant also pointed to another spot as the point of impact, but he did not heed the defendant. Cromwell’s reason as stated by him for refusing to sign the statement was that the police did not select the point of impact which he showed and preferred that shown by the defendant. The evidence as to the point of impact shown is most confused. In any case the police witnesses and the defendant did not see the accident. I am more inclined on the balance of probabilities on this issue to prefer Cromwell’s testimony that he did not sign the sketch because the point of impact selected by him was not indicated on the sketch. I do not see any better reason for his refusal to sign the sketch.
In so far as the photographs taken of the scene were concerned they were meaningless, except that they showed that the defendant’s vehicle carried goods. The photographs appear to have been taken with a certain bias. They should always be taken from all angles and if possible to capture debris if any on the road. The best are aerial photographs. Since the entire issue of negligence may sometimes hinge on such a fact as the width of the road or some distance from a kerb or some similar fact, it is important that detailed and exact plans be made of the scene of the accident. In this regard all points pointed out should be marked and preferences should be disregarded by the police. Since the evidence about the broken glass is that it was scattered, it does not afford any help in the case.
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Having disposed of the importance of the sketch exhibit A and the photographs tendered in determining the question of negligence, I must now turn to the evidence of Essel who said he was a mate on the defendant’s vehicle on the night of the accident.”
(The emphasis is mine.) He continued:
“In the light of the foregoing the evidence left for the consideration on the question of negligence is that of the plaintiff’s first witness Cromwell, his mate Braimah and Labisse the passenger that the plaintiff ‘s driver was dazzled and blinded by the lights of the defendant’s vehicle coming from the opposite direction. This fact has to be taken into account in considering the question of negligence. In such circumstances, since it is the duty of the driver to display reasonable skill and competence in driving, his proper course in the circumstances would be to slow down his car and possibly even to stop. It can scarcely be otherwise than negligent to drive at all when clear vision is impossible. The testimony of the plaintiff ‘s witnesses is that Cromwell, the plaintiff ‘s driver, did stop when he was dazzled and blinded by the defendant’s vehicle’s light. In Grunshie v. Yeboah, Court of Appeal, 1 May 1967, unreported; digested in (1967) C.C. 96, the Court of Appeal decided that where a collision occurs between a moving vehicle and a stationary vehicle prima facie, the driver of the moving vehicle is to be blamed, There has not been any evidence by the defence to discharge this burden on them: see The Merchant Prince [1892] P. 9. I, therefore, hold that the collision between the plaintiff ‘s vehicle and defendant’s vehicle was caused by the negligence of the defendant’s driver.”
It has been necessary to set out the learned judge’s reasons at length and rather fuller than usual and in his own words in order to appreciate the process by which his decision was arrived at for rejecting the police evidence. He appeared to have set much store on the premise that the witnesses of the plaintiff were eyewitnesses. The judge did not pause to reflect that at least two of the witnesses had reasons for protecting their master’s interest. The driver of the vehicle was one of the principal participants in the action. His mate was his servant.
In every collision case, the drivers involved often give very divergent accounts of how the accident happened, and the mere fact that both are eyewitnesses to the accident, does not stamp their evidence with the mark of truth. In such circumstance it is for the court to look at independent pieces of evidence which would tilt the case one way or the other and in the absence of such evidence to come to the conclusion that both drivers were to blame: see Bray v. Palmer [1953] 1 W.L.R. 1455, C.A.
There was, however, a third witness in the vehicle who was a passenger and who might be said to have had no interest, but his evidence when tested in the light of the evidence of the other two witnesses of the plaintiff appears exaggerated. None of the other witnesses was able to tell the first sighted the on-coming vehicle and it is a distance at which they first sighted the on-coming vehicle and it is a
[p.414] of [1974] 2 GLR 407
common experience if their story is correct that with the lights of the other vehicle dazzling them, no one could possibly tell the distance at which the vehicle was first sighted, yet he was positive that he first saw the vehicle at about 150 yards away. He further stated that the other vehicle stopped at a distance of 75 yards away after the accident. Measurements showed that the other vehicle stopped only ten yards away after the accident from the other vehicle. The difference between the two figures is sufficient to make one wonder whether he is a reliable witness or a good eyewitness, at that.
One tragic fact in this case, is that the only person in the other vehicle, was killed almost instantly in the collision; there was therefore no eyewitness on the other side and in the nature of things the oral evidence of eyewitnesses could only be one way. It seems to me only fair and just that the judge in accepting the evidence of the plaintiff and his witnesses should have had regard to the independent pieces of evidence which either support the plaintiff s case or contradict it.
In this connection the three policemen were positive that it was the driver of the plaintiff s vehicle who indicated to them the point of impact. The inspector stated:
“The only person who pointed out the point of impact was the driver of WR 869 1. We corroborated the point he pointed out to us by broken glass and trafficator light which we found at the spot. WR 8691 which was facing Accra occupied 10 ft. 9 ins. The other vehicle which was facing Accra-Cape Coast direction would occupy 10 ft. 3 ins.”
(The emphasis is mine.)
It is true that the driver denied that he pointed out that spot and maintained “There was no broken glass around the place I pointed as the point of impact. The place I pointed had mud from my mudguard. The broken glass was scattered.” (The emphasis is mine.) The learned judge appeared to have accepted the driver’s version for refusing to sign the sketch because the police failed to indicate in their sketch the place he pointed out as the point of impact. Assuming for one moment that the police refused to accept that place or to record it, would that be a reason for rejecting it? I think not. In this case the driver of the other vehicle had died, therefore there was no person who could have shown the point of impact as seen by him, yet that would be no reason for rejecting the police measurements if there was evidence that it was correctly measured. Assuming also that the two drivers had been alive and had indicated different places as areas of impact, and-had then refused to sign the sketch, would that be a reason for rejecting it? Again I think not. Of course measurements may sometimes be unhelpful if they cannot help the judge to decide one way or the other how the accident happened. But I do not think a refusal by one of the participants to sign a sketch is a good reason for rejecting it. There is no legal obligation on him to append his signature. The learned judge delivered himself of the opinion that apart from the reason given by the driver he saw no other reason for his refusal. I think there may be more
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reasons than one, for example, if a driver finds as in this case that the measurements do indicate that the accident is likely to be his fault he certainly would be wise in refusing to incriminate himself.
But there were other pieces of evidence which tend to support the police that there was no dispute between them and the driver in the taking of the measurements and that the point of impact was first indicated by him. The driver’s mate in his evidence stated: “The next day I went to Assin Gomoa with the plaintiff. I was present when measurements were taken. I stood by my vehicle when measurements were being taken. I do not know why they quarrelled.” In cross-examination he said, inter alia, “I saw about three policemen at the scene. I did not see any one holding a camera. I saw them measuring the road. I was standing by my vehicle when measurements were being taken. The plaintiff was not there when measurements were being taken.”
It seems curious that this witness would be silent if the police had refused to accept any point shown by his master. He would most likely have given this information in his evidence. More important still there was the evidence of the plaintiff himself on the point of impact. He stated:
“My vehicle faced Accra. There was a small space on the left side of my vehicle. There was a space at the rear of the defendant’s vehicle but not at the front side. I saw the point of impact myself. I saw broken glass there. The glass I saw on the road was about three quarters of the road towards the offside of my vehicle. The glass was not on the defendant’s side of the road.”
(The emphasis is mine.) Unfortunately, the evidence showed that he left the scene before measurements were taken. Except that he thought the glass was on his side of the road, he was saying precisely what the police found. He might of course have gathered this knowledge from his own observation, or more likely from his observation and information given to him by his driver.
The learned judge had himself opined that if the broken glass had not been “scattered in the middle portion of the road” it could have indicated the point of impact. The police measurements in a way were underscoring this observation that because the broken glass was scattered in the middle of the road, the accident must have occurred there. There was also the trafficator light found in the middle of the road. The measurements could lead to only that conclusion; it, however, went further to show that the plaintiff s vehicle was six inches beyond the cat’s eye on his offside.
Faced with this problem Mr. Peter Adjetey for the respondent argued that the learned judge was right in accepting the evidence of the plaintiff as probable and that being a finding of fact this court ought not to disturb it even though it would have taken a different view of the evidence were it sitting as a court of first instance. Mr. Adjetey maintained that the resultant positions of the vehicles indicated where each stopped after the accident
[p.416] of [1974] 2 GLR 407
rather than the actual positions occupied by them at impact. He maintained that both vehicles were likely to be pushed in either direction after impact, therefore not much reliance could be placed on the measurements.
In my view if the learned judge had merely rejected the measurements taken by the police as being inaccurate and unreliable or for some other tenable reason, it may perhaps not be open to criticism. But the judge gave reasons for his rejection, one of them being that the driver never signed the sketch and the other that he found the sketch and measurements confusing without saying why he so found them. It has already been shown that the first was not valid and as regards the second this court too have had a look at the sketch and measurements and found nothing confusing about them; perhaps if the learned judge had looked at the sketch, having as its background the oral evidence, rather than in isolation, he would have come to the conclusion that the accident occurred in the middle of the road.
Though enough has perhaps been said to indicate the probable point of impact, one ought to observe, that on the evidence of the plaintiff his vehicle was stationary when it was hit and this was so found by the judge; there was no evidence that it was pushed from its position, and if it was so pushed there would have been brake marks as his brakes were on, and that would indicate his position before being pushed. Measurements would therefore indicate its precise position and this would have been shown by the police. If the learned judge had looked at it from this angle he would have come to the conclusion that when the driver said he pulled to his nearside before stopping he could not possibly be correct. It is obvious that he pulled up in the middle of the road apparently after being dazzled by the lights of the on-coming vehicle. There was an interesting piece of evidence which appeared to have been overlooked; the two witnesses with the driver all stated that immediately the driver applied his brakes and stopped, he fell on them and then the vehicle Nas hit by the on-coming vehicle. The only inference is that he must have applied his brakes so violently as to cause his fall on his mates.
In my view the totality of the evidence indicates that the probable cause of the accident was the failure of both drivers to drive their respective vehicles well within their correct side of the road so they could pass each other in safety. The police measurements show that the plaintiffs’ vehicle was six inches across the centre line, but this might be due to the fact that he was so dazzled by the light of the on-coming vehicle that when he thought he was stopping in his correct lane he was in fact on his offside., The driver, the only occupant in the other vehicle, is dead, and of course dead men tell no tales, so all the facts will never be known. In any case there was no evidence that he too tried to avoid the vehicle which was in his way and in his path. To my mind both drivers were equally to blame in that both were hugging the middle of the road immediately before the accident; the plaintiff alleged he stopped, but the measurements and corroborative evidence showed he stopped in the middle of the road.
The learned judge stated what he termed a legal principle applicable to the case before him and relied on it, namely, Grunshie v. Yeboah, Court
[p.417] of [1974] 2 GLR 407
of Appeal, 1 May 1967, unreported; digested in (1967) C.C. 96, wherein the Court of Appeal decided that where a collision occurs between a moving vehicle and a stationary vehicle, prima facie the driver of the moving vehicle is to blame. It seems to me, if this be a principle, then it is being overstretched. The facts of Grunshie’s case stated briefly are as follows: two vehicles were approaching a narrow culvert the driver of one of the vehicles sensing danger stopped short of the culvert to allow the other vehicle to pass; the latter going over the culvert collided with the stationary vehicle which had parked on its proper side. The court held there was sufficient room for the moving vehicle to pass and the driver would have done so if he had been driving carefully; if there was insufficient room, he should have stopped. “He would have been negligent if he attempted to pass conscious of the fact that he had insufficient room to pass” per Apaloo J.A. Besides this accident happened in broad daylight. I think the right way to look at the case of the Grunshie v. Yeboah is that if certain facts are raised peculiar to the accident the presumption of negligence might be raised. Each case must depend upon its own facts.
I have also had to look at the case of Mbadiwe v. Yaya (1954) 14 W.A.C.A. 613 in which Foster Sutton P. reading the judgment of the court observed at p. 615 that:
“In a case such as the one under consideration here the accident itself raises a presumption of negligence against the defendants, and the onus of disproving negligence was upon them; The Merchant Prince ([1892] P. 9). It is, therefore, necessary to determine whether they discharged that onus.”
The facts of this case may also briefly be recalled. The plaintiff s lorry was parked at night on the left of the road with a light on the load and the defendant’s lorry struck it from behind. The second defendant admitted that the stationary vehicle was parked on the left side of the road but he said his brakes failed when he was at the top of the hill and that he could not pass on the offside of the vehicle because there was a ditch and that if he had not hit it he would have hit the gate of the bride ahead. In the face of the alternative dangers he decided to drive into the stationary lorry. The trial judge accepted the defendant’s explanation that his brakes failed, but the West African Court of Appeal was of the opinion as stated at p. 615:
“There can be no doubt that a collision would not have occurred if the brakes of the defendant’s vehicle had functioned properly. Their failure to do so was due to the fact that the brake fluid container was completely empty.”
The West African Court of Appeal went on to suggest that there were certain facts which should have put the defendants on notice that the brake mechanism was not functioning properly and that the failure of the defendants in not inspecting and putting right the defect must be held “in the
[p.418] of [1974] 2 GLR 407
circumstances here, to have been negligent.” The reasoning in this case indicates that if the defendants had inspected the brake mechanism with that degree of competence and expertise requisite in such inspection and had been unable to detect the fault the court would have held them not to have been negligent.
In my view whether any presumption of negligence could be raised depend upon a variety of circumstances in a particular case and there can be no legal presumption of negligence whenever a stationary vehicle is hit by a moving vehicle; and in any event the court’s attention was drawn to the Privy Council decision in Stewart v. Hancock [1940] 2 All E.R. 427, P.C. Lord Roche delivering the judgment of the court stated at pp. 430-431 as follows:
“Numerous cases were cited in the Court of Appeal and before their Lordships, including cases of collisions by motor vehicles with stationary unlighted objects. Their Lordships are of opinion that no useful purpose would be served by a further discussion of those cases, and still less by a consideration of the question of whether any particular one of them was rightly decided on the facts. They agree with the summary of their legal effect presented by Ostler, J., who, in dealing with Tidy v. Battman [1934] 1 K.B. 319 judgment of Macnaghten, J., approved by the Court of Appeal, read the following passage from the judgment of Macnaghten, J., at pp. 320, 321: ‘At night time the visibility of an unlighted obstruction to a person driving a lighted vehicle along the road must necessarily depend on a variety of facts, such as the colour of the obstruction, the background against which it stands, and the light coming from other sources … It cannot, I think, be said that where there is an unlighted obstruction in the roadway, a careful driver of a motor vehicle is bound to see it in time to avoid it, and must therefore be guilty of negligence if he runs into it. ’ Then Ostler, J., proceeded as follows: ‘With that passage I respectfully agree. ‘It might be paraphrased and shortened into a statement that negligence is a question of fact, not of law: that each case must depend upon its own facts: and that there is no rule of law which in every case disqualifies a motorist from recovering damages where he has run into a stationary unlighted object.”
Turning now to the case before us one can hardly find any similarity between it and the Grunshie case or for that matter Mbadiwe v. Yaya (supra) which could afford any assistance. It is true that the witnesses of the plaintiff all maintained that his vehicle had stopped when it was hit, but examination of the evidence reveals that it only stopped immediately before impact. It is not that it was already parked and stationary in the manner or sense described in both the Grunshie and Mbadiwe cases before it was hit. I think I have said enough to show that if both drivers had kept well within their lanes this tragic accident would not have happened.
[p.419] of [1974] 2 GLR 407
Both drivers were equally negligent. I would allow the appeal, set aside the judgment of the learned High Court judge and the order for costs, and would dismiss both the claim and counterclaim. Each party to bear his own costs below and the appellant will have his costs assessed at 0261.28.
JUDGMENT OF LASSEY J.A.
I agree.
JUDGMENT OF FRANCOIS J.A.
I also agree.
DECISION
Appeal allowed.
K. T.
