DARKWAH v. DENTEH AND OTHERS [1972] 2 GLR 305
COURT OF APPEAL
Date: 3 JULY 1972
Before: PREMPEH J.S.C., JIAGGE AND SOWAH JJ.A.
CASES REFERRED TO
(1) Beare v. Garrod (1915) 85 L.J.K.B. 717; 113 L.T. 673, C.A.
(2) Sharp v. Loddington Ironstone Co., Ltd. (1924) 132 L.T. 229, C.A.
(3) Newton v. Apponsah (1934) 2 W.A.C.A. 155.
(4) Lofthouse v. Leicester Corporation (1948) 64 T.L.R. 604, C.A.
(5) Buckingham v. Daily News Ltd. [1956] 2 Q.B. 534; [1956] 3 W.L.R. 375; 100 S.J. 528; [1956] 2
All E.R. 904, C.A.
(6) Koom v. Awortwi (1929) F.C. ‘26-’29, 409.
(7) Akyin III v. Abaka II (1939) 5 W.A.C.A. 49.
(8) Alhadi v. Allie (1951) 13 W.A.C.A. 323.
NATURE OF PROCEEDINGS
APPEAL from a judgment of a circuit court dismissing the plaintiff’s action in negligence. The facts are fully set out in the judgments.
COUNSEL
U. V. Campbell for the appellant.
E. D. Kom for the second respondent.
No appearance by or for the co-respondent.
JUDGMENT OF SOWAH J.A.
This is an appeal from a judgment of a learned judge of the Circuit Court, Kumasi, in which she
dismissed the claim of the plaintiff against the defendants in respect of the alleged negligence of the
second defendant in the manner in which he drove his vehicle No. AN 5947 on 5 February 1965, holding that the plaintiff had not discharged the onus of establishing that the second defendant was negligent. The co-defendant’s alleged liability was vicarious, he being the master of the second defendant.
In view of the divergence of views I think it necessary for the proper appreciation of the findings of the learned judge to reproduce almost in full the evidence of the plaintiff and, in part, the cross-examination which ensued.
The plaintiff in his evidence-in-chief stated as follows:
“I remember on Friday 5 February 1965 I was driving my vehicle No. AT 7070 in the Effiduase-Ejisu road and on reaching the outskirts of Juaben I sighted a Mercedes Benz bus No. AN 5947 ahead of my vehicle going in the same direction as mine. My vehicle was about 60 feet behind this Benz bus. The driver of the Benz stopped his vehicle abruptly in order to pick up a passenger without any warning. Because of the position in which the driver of this Benz placed me I had to overtake the Mercedes Benz in order not to run into the back. As I was overtaking the Mercedes bus I sighted another Morris J bus coming from the opposite direction. In order to avoid a head on collision with the Morris J bus I swerved my vehicle to the nearside of the road in order to avoid colliding with the Morris J and my vehicle was positioned behind [p.307] of [1972] 2 GLR 305 the Mercedes Benz bus to allow the Morris J bus to pass. After the Morris J bus had passed I drove on and parked my vehicle abreast with the Benz bus and questioned the driver of this bus why he drove without warning or signals to other users of the road. The driver of this vehicle Kwasi Amponsah asked me why I posed that question to him and I replied that, did he notice that without signalling me I nearly collided with the Morris J bus and he retorted that I am not the right person to teach him good driving. When I found that he was not co-operative I drove off as my vehicle was stationary on the wrong side of the road. Having driven to a distance of 70-80 feet I heard a bang at the rear nearside of my vehicle so I stopped. I alighted from the vehicle to find out what had happened. I found that the Mercedes Benz bus had run into the rear nearside mudguard of my vehicle and caused damage to it and the tail lights. The edge of the near side rear bumper got bent.”
Thereafter he gave an account of his actions after the accident and proceeded thus:
“It was the offside front door lunges of the defendant’s Mercedes Benz which damaged the bumper of my vehicle. The front mudguard of the Benz bus also hit the rear nearside bumper of my vehicle. I put to the defendant that through his carelessness he had caused damage to my car but he said nothing.”According to the plaintiff the road was 20 feet wide. The second defendant’s vehicle occupied eleven feet leaving nine feet for his vehicle.
Stopping here for a moment, the only possible impression the evidence leaves on the mind is that the
plaintiff’s vehicle had overtaken the second defendant’s vehicle; had proceeded to a distance of about 70 to 80 feet when the defendant’s vehicle, now at his rear, drove into him. In other words the positions of the two vehicles had altered and the plaintiff’s vehicle was preceding the defendant’s. If this was the position, quite clearly an explanation would be called for from the second defendant. Prima facie where a following vehicle collides with the vehicle preceding it, the driver of the following vehicle is negligent; for the law enjoins that driver to leave enough room between the two vehicles to enable him, in case of an emergency, either to stop or manoeuvre his vehicle in such a manner as to avoid driving into the leading vehicle.
In this case however the short cross-examination effectively established that this was not a case of two vehicles in motion, one after the other. First the plaintiff was cross-examined on the damage to his vehicle and he had to admit that, “looking at the damaged bumper of my vehicle the damage suggests something grazed the mudguard.” He then denied that the accident occurred while he was overtaking. Subsequently, he made the following admission: [p.308] of [1972] 2 GLR 305
“It is correct that I was prosecuted for careless driving in the District Court at Effiduase. It was part of my case in the lower court that whilst I was overtaking the second defendant’s vehicle he suddenly swerved to the offside and collided with my vehicle by occupying a greater portion of the road. It is correct I wrote to the first defendant claiming expenses incurred as repairs of my vehicle.”
It is now said that in the criminal action the plaintiff was not called upon to give evidence. That may well be so, but it seems to me irrelevant whether or not he did as he could by cross-examination of witnesses for the prosecution establish the case he intended to put forward as, indeed, the defendants did in this case. In any case he could deny in these proceedings that that was the case he intended to put forward or that he did not in fact put forward such defence.
The only witness called by the plaintiff was the police officer who investigated the accident. He gave his findings on the relative positions of the vehicles after the accident. He had this to say under cross-examination: “It is correct my investigations revealed that both vehicles were travelling in the same direction, i.e. going towards Kumasi. I found further that the accident happened when the plaintiff was trying to overtake the Benz bus driven by the second defendant and it was on this attempt and overtake that the collision occurred.”
In effect he stated almost exactly what the plaintiff had earlier admitted under cross-examination.
The defendants elected not to give evidence, thus all the evidence was one way, namely, that the
defendant’s vehicle collided with the rear of the plaintiff’s vehicle. The defendants’ cross-examination, however, established that it was not a simple case of two vehicles proceeding in the same direction but that the plaintiff was in the process of overtaking this vehicle when the accident occurred.
In view of the criticism of the learned judge’s findings it is pertinent to turn to it. She reviewed the
evidence of the plaintiff carefully and in detail indicating clearly that she appreciated the important issues at stake. She went on: “From his own account his vehicle was on the offside of the road at the time of the accident, whereas the second defendant’s vehicle was on its nearside occupying about eleven feet of the 20 foot-wide road. The plaintiff denied emphatically that the accident occurred whilst he was overtaking the defendant’s vehicle on the offside but admitted later in cross-examination that during the hearing of the charge of careless driving preferred against him in connection with the accident in the district court, it was a point of his case that the accident happened whilst he was overtaking the defendant’s vehicle.
[p.309] of [1972] 2 GLR 305 The plaintiff’s only witness is the police officer who carried out investigations in this case. He admitted that his investigations revealed that the accident happened when the plaintiff was overtaking the defendant’s vehicle.
I do believe that the accident happened when the plaintiff was overtaking the defendant’s vehicle and have concluded that his description of how the accident happened cannot possibly be true.
Obviously the duty on overtaking vehicles is greater and it was absolutely necessary that the plaintiff ought to have satisfied himself that it would be safe to overtake the defendant’s vehicle before doing so but this he failed to do. Having considered the rival stories of the plaintiff and the defendant I have accepted that of the defendant as the more probable of the two.”
She turned to the damage on the plaintiff’s vehicle and observed as follows:
“I have the following observations to make. The damaged parts of the plaintiff’s vehicle were the rear
nearside bumper and the nearside mudguard; the defendant’s vehicle could not have run into the back of the plaintiff’s vehicle as he contended. It is evident that the accident occurred when the plaintiff attempted to overtake the defendant’s vehicle. The occupation of eleven feet of the road by the defendant’s vehicle leaving room of nine feet on its offside is not conclusive evidence of negligence. It was rather the plaintiff’s responsibility to have satisfied himself that the room on the offside of the defendant’s vehicle was sufficient to admit his car before overtaking but this he failed to do.”
In consonance with her review she held that the evidence lacked that sufficiency and clarity on which an action for negligence could succeed and that the evidence, such as it was, before her was unreliable. In ordinary language the plaintiff had not discharged the onus of establishing negligence.
The first criticism of the judgment was that the learned judge was wrong in holding “having considered the rival stories of the plaintiff and the defendant I have accepted that of the defendant as the more probable of the two” inasmuch as no evidence was tendered by the defendants. There appears to be somejustification in this criticism because in fact the defendants gave no evidence. What they succeeded in doing was to obtain admissions from the plaintiff and his only witness which were sufficient to destroy the case of the plaintiff. The next criticism was that “the learned trial judge erred in law in basing her findings on the evidence of the police officer, the plaintiff’s first witness, elicited under cross-examination which was hearsay evidence and cannot provide the basis for any decision or judgment.”
[p.310] of [1972] 2 GLR 305 I have already referred to the cross-examination of the police witness in extenso and will not repeat it.
There appears to be some divergence on this matter between our own laws and the English law regarding the reception of such evidence. It would appear that under English law evidence of answers made as a result of inquiry would be inadmissible unless the inquiry was at the request of the party against whom it was being tendered.
Further, hearsay evidence elicited under cross-examination cannot be relied upon, it being inadmissible. It is pertinent to refer to the case of Beare v. Garrod (1915) 85 L.J.K.B. 717, C.A. The following passage is culled from Cross on Evidence (2nd ed.), p. 215:
“Thus in Beare v. Garrod a widow claimed workman’s compensation on the footing that her deceased
husband’s last illness arose out of his employment. In cross-examination she said that her deceased husband told her that he had been out and got wet through on Tooting Common when he should have gone straight from one hospital to another, and it was held that her statement was not evidence of the facts stated. The employers could not rely on the deceased’s statement as evidence of the fact that he went on to Tooting Common because, if they had been allowed to do so, hearsay would have been received as evidence of the truth of that which was asserted in a case in which no recognised exception to the hearsay rule was applicable.”
See also Sharp v. Loddington Ironstone Co., Ltd. (1924) 132 L.T. 229, C.A.
The evidence of the plaintiff showed that the police officer took statements from both himself and the
second defendant after the accident and yet nowhere was it disclosed how he obtained the knowledge
deposed to by him. The evidence as it appeared was meagre and on balance we would tip the scales
against it and would hold that it was hearsay.
However in our law we have the case of Newton v. Apponsah (1934) 2 W.A.C.A. 155 which appears to
be against the classical rule of evidence, namely, that hearsay evidence is inadmissible even in
cross-examination and cannot be the basis of a judgment. The headnote of Newton’s case reads,
“Evidence, otherwise inadmissible when brought out under cross-examination was not misreceived,” but a perusal of the whole judgment cannot support this wide statement. The pertinent portion of the Newton judgment at p. 155 reads:
“The first ground of appeal is misreception of inadmissible evidence. The evidence alleged to be misreceived is the whole of the evidence of the witness Abba Assaniwah. The reason it is suggested that her evidence was inadmissible is that in cross-examination she was asked a number of questions about the sale of her land and after answering them said ‘All I know about the sale of [p.311] of [1972] 2 GLR 305 the land I learnt from my husband’. The contention that all her evidence is inadmissible because in answering certain questions in cross-examination she was speaking from hearing need hardly be taken seriously and there is no substance in this ground.”
I think that the headnote in Newton’s case might be confined to the special facts of the case as we had not the benefit of the evidence referred to.
Even if this submission succeeds and the evidence of the police officer is excluded on grounds of misreception, the appellant has still to contend with his own admissions outlined supra. The learned trial judge examined the other evidence before her. She said, “I shall now determine whether the plaintiff has succeeded in proving all or any of the particulars of negligence pleaded in his statement of claim.” After a careful examination of the evidence not including the evidence of the police officer she held that the plaintiff had not established his case. It could not in fairness be said that her judgment was based entirely upon the evidence of the police officer which evidence was superfluous in view of the plaintiff’s own admissions.
It is now said that the learned judge did not appreciate the meaning of the plaintiff’s evidence: that in
effect when he said he was 70 feet ahead of the defendant’s vehicle he was still in the process of
overtaking and until such time as he veered to the left and took his proper position on the road he was still overtaking. I have reproduced almost the whole of the plaintiff’s evidence-in-chief. That evidence free from any glosses and interpolations cannot bear the interpretation now being put on it.
We may perhaps remind ourselves of the following from the judgment of Lord Cozens-Hardy M.R. at p. 720 in Beare v. Garrod referred to above:
“In my opinion, although the evidence is extremely slight, and although the trial was not altogether
satisfactory, I think there is evidence upon which we ought not to interfere. It is not for me to say what conclusion I should have arrived at, having regard to this evidence, but I feel that I cannot say that there was not evidence upon which the learned County Court Judge might have come to the conclusion which he came to…” I also adopt, with respect, the words of Lord Goddard C.J. in Lofthouse v. Leicester Corporation (1948) 64 T.L.R. 604, C.A.:
“This Court no doubt has a wider power when the matter is tried by a single Judge, and can reverse the Judge on the facts. But the Court is naturally very slow to do that, because the Judge has an opportunity of seeing and hearing the witnesses and obtaining what in these running-down cases, speaking for myself, I think is so important—and which can only be obtained at the trial and not at the hearing of the appeal—the imponderable elements which I may call the atmosphere of the case. Although I do not intend [p.312] of [1972] 2 GLR 305 to lay down anything which is necessarily exhaustive, I would say that the Court ought not to interfere where the question is a pure question of fact, and where the only matter for decision is whether the Judge has come to a right conclusion on the facts, unless it can be shown clearly that he did not take all the circumstances and evidence into account, or that he has misapprehended certain of the evidence, or that he has drawn an inference which there is no evidence to support.”
I agree with the learned judge that the plaintiff was unable to establish his claim with that degree of
certainty requisite in such matters. The defendants in Buckingham v. Daily News Ltd. [1956] 2 All E.R. 904, C.A. called no evidence. They nevertheless cross-examined successfully to show that the accident was not due to any negligence on their part.
Accordingly, I would dismiss the appeal.
JUDGMENT OF PREMPEH J.S.C.
I have had the advantage of reading the learned judgment of my brother Sowah, and I find myself in
entire agreement with his conclusion that this appeal should be dismissed.
I wish however to add a few observations of my own having regard to the rather important issue of
misreception of inadmissible evidence elicited under cross-examination—ground which was very ably canvassed and forcefully argued, and one on which the appellant mainly relied for the success of his appeal. It is to be expected that this point was so elaborately stressed, because on the totality of the evidence, the real issue, indeed the crucial issue, in this case appears to be whether or not it was the plaintiff himself who grazed his vehicle with that of the second defendant, and after some exchange of words, he, the plaintiff, had driven about 70-80 feet ahead, when the second defendant then drove into the rear of his vehicle, thereby causing damage to it. The trial court decided this issue in favour of the defendants, and held that the plaintiff’s evidence was on the whole insufficient and unreliable to support a case of negligence against the second defendant. The first of the additional grounds of appeal reads as follows: “The learned trial judge erred in law in basing her finding on the evidence of the police officer, the plaintiff’s first witness, elicited under cross-examination which was hearsay evidence, and cannot provide the basis for any decision or judgment.”
The ground of appeal obviously purports to impeach the use—if any—which the trial court made of the evidence of the plaintiff’s only witness, the police officer who investigated the accident, and who went to the scene and took measurements and thereafter obtained statements from both the plaintiff and the second defendant. The essential objection [p.313] of [1972] 2 GLR 305 taken is not as to the whole of the evidence of this witness, but only to that part which was given by him under cross-examination which reads: “It is correct my investigations revealed that both vehicles were travelling in the same direction, i.e. going towards Kumasi. I found further that the accident happened when the plaintiff was trying to overtake the Benz bus driven by the second defendant, and it was on this attempt and overtake that the collision occurred.”
It has been submitted on behalf of the appellant that this was hearsay evidence, and that although it was received under cross-examination it still remained hearsay, and that therefore a miscarriage of justice was occasioned by the learned trial judge in relying on that inadmissible oral evidence.
My brother Sowah has very lucidly analysed this aspect of the law by reference to a few English cases
which settle the point that hearsay evidence elicited under cross-examination is inadmissible.
Having regard to the controversial case of Newton v. Apponsah (1934) 2 W.A.C.A. 155 where from the headnote only the impression is gathered that that was a decision against the classical rule of evidence, I must say that I have no useful comments to add further to the very admirable way in which he has so smoothly laid the principle enunciated in this case to rest, and therefore I am also prepared to hold that the evidence of the plaintiff’s witness elicited under cross-examination was hearsay and inadmissible.
In Koom v. Awortwi (1929) F.C. ‘26-’29, 409, the trial judge having based his findings on inadmissible evidence, it was held that it was dangerous to allow the judgment to stand, and the appeal was therefore allowed, and the case sent back for rehearing. In contrast to the Full Court’s decision is the judgment of the Judicial Committee of the Privy Council in Akyin III v. Abaka II (1939) 5 W.A.C.A. 49. In that case, the main ground of appeal argued before the Privy Council was that the trial judge and the Court of Appeal were influenced in their decision by inadmissible evidence, and that the appeal should be allowed on that ground. In rejecting this argument, Sir Lancelot Sanderson who delivered the opinion of the Privy Council said at p. 55:
“Their Lordships’ conclusion is that although there was certain evidence admitted which should not have been admitted, there was sufficient evidence, apart from the inadmissible evidence, to justify the decision at which the two Courts in Africa arrived, and consequently that the appeal should be dismissed with costs.” Also in Alhadi v. Allie (1951) 13 W.A.C.A. 323, the trial judge admitted against the defendant certain inadmissible evidence, and to some extent relied upon it, but there was other evidence supporting the judge’s conclusions. It was held that the misreception of the inadmissible evidence was not fatal because after excluding that evidence, there was ample evidence to support the findings of fact.
[p.314] of [1972] 2 GLR 305 Applying the effect of these two latter judgments to the present case, the question that arises is whether, excluding the evidence misreceived and its possible effect on the mind of the trial judge, there was sufficient evidence to justify the finding. In my view, the answer to this question is amply provided by the appellant himself when he made the following admissions:
“It is correct that I was prosecuted for careless driving in the District Court at Effiduase. It was part of my case in the lower court that whilst I was overtaking the second defendant’s vehicle, he suddenly swerved to the offside and collided with my vehicle by occupying a greater portion of the road.”
There does not appear to be any difference in substance between this evidence and that adduced by the plaintiff’s witness, and I think it is fair to say that the evidence of this witness is nothing more than a repetition of the appellant’s evidence on the vital issue hereinbefore postulated. However, in view of the criticism that the trial court’s judgment was based on the evidence of the plaintiff’s witness, it is only right to refer to it.
The learned trial judge reviewed the evidence and proceeded: “From his own account his vehicle was on the offside of the road at the time of the accident, whereas the second defendant’s vehicle was on its nearside occupying about eleven feet of the twenty-foot wide road.
The plaintiff denied emphatically that the accident occurred whilst he was overtaking the defendant’s vehicle on the offside, but admitted later in cross-examination that during the hearing of the charge of careless driving preferred against him in connection with the accident in the district court, it was a point of his case that the accident happened whilst he was overtaking the defendant’s vehicle.
The plaintiff’s only witness is the police officer who carried out investigations in this case. He admitted that his investigations revealed that the accident happened when the plaintiff was overtaking the defendant’s vehicle.
I do believe that the accident happened when the plaintiff was overtaking the defendant’s vehicle and have concluded that his description of how the accident happened cannot possibly be true.
Obviously the duty on an overtaking vehicle is greater and it was absolutely necessary that the plaintiff ought to have satisfied himself that it would be safe to overtake the defendant’s vehicle before doing so but this he failed to do. Having considered the rival stories of the plaintiff and the defendant I have accepted that of the defendant as the more probable of the two.”
[p.315] of [1972] 2 GLR 305 On the question of damage on the plaintiff’s vehicle she continued:
“I have the following observations to make. The damaged parts of the plaintiff’s vehicle were the rear
nearside bumper and the nearside mudguard; the defendant’s vehicle could not have run into the back of the plaintiff’s vehicle as he contended. It is evident that the accident occurred when the plaintiff attempted to overtake the defendant’s vehicle. The occupation of eleven feet of the road by the defendant’s vehicle leaving room of nine feet on its offside is not conclusive evidence of negligence. It was rather the plaintiff’s responsibility to have satisfied himself that the room on the offside of the defendant’s vehicle was sufficient to admit his car before overtaking but this he failed to do.”Apart from merely repeating the evidence of the plaintiff’s witness, I am unable to see anything in the
judgment which admits of any suggestion that the evidence of this witness was relied upon or even used.
On the contrary, it is clearly evident within the context of the findings that the trial judge addressed her conclusions mainly on the evidence of the appellant himself, his contribution to the cause of the accident, and the peculiar features of the damage to his vehicle.
Even if it is conceded that from a subjective point of view, it could be implied from the findings that the learned trial judge was influenced by the evidence of the plaintiff’s witness, I am of the firm opinion that, excluding his testimony, there was abundant evidence to justify the finding and conclusion of the trial judge, and that there has been no miscarriage of justice.
JUDGMENT OF JIAGGE J.A.
I have read the judgments of Sowah J.A. and Prempeh J.S.C. and then read again the proceedings in and the judgment of the court below.
The plaintiff’s story was that he was driving about 60 feet behind the defendant’s vehicle when, without giving any warning or signal, the defendant’s vehicle stopped abruptly. The plaintiff tried to overtake but found a vehicle coming from the opposite direction and waited until it had passed. He then drove forward and stopped abreast of the defendant’s vehicle. He asked the defendant why he had stopped without giving any signal or warning to the vehicle following his. The defendant in reply asked the plaintiff why he had asked that question. The plaintiff told him that by stopping abruptly without any signal or warning, his vehicle behind almost run into the defendant’s stationary lorry. The defendant retorted that the plaintiff was not the man to teach him how to drive. The plaintiff then drove away and about 70 to 80 feet after the spot at which both vehicles had been stationary he heard a bang on the nearside rear bumper of his vehicle and both vehicles stopped. At the point of impact, the measurements taken show that the defendant’s vehicle had occupied eleven feet of the twenty-foot road.
[p.316] of [1972] 2 GLR 305 The question as to which vehicle ran into the other can be decided only after the learned trial judge had made a finding on whether or not the two vehicles stopped abreast at one point and whether the plaintiff was the first to take off after that. The defendant chose not to give evidence and what is known of his case is what was put to the plaintiff during cross-examination. It might help to state here the relevant cross-examination of the plaintiff by the defendant’s counsel on this issue:
“Mr. Wiredu: Do you agree that this grazing suggests that your vehicle was in motion as well as the
defendant’s vehicle?
Plaintiff: Yes. Wiredu: Did you tell the court that the second defendant’s vehicle stopped at the point of impact, if this is true, there could not have been any grazing at the rearside mudguard of your vehicle?
Plaintiff: After the collision both vehicles stopped but nevertheless there was this grazing on the rearside mudguard of my vehicle. It is correct that I continued on the offside 70 to 80 feet after I had overtaken the second defendant’s Benz bus.
Wiredu: I suggest to you that you attempted to overtake the second defendant’s vehicle at a time you were faced with an oncoming vehicle so you quickly swerved to the nearside and the right lane door hinge brushed the rear nearside mudguard of your vehicle.
Plaintiff: No, that was not how the accident happened.
Wiredu: I suggest that this was why you were on the offside of the road and not that you continued 70 feet to 80 feet ahead after overtaking. Plaintiff: This is not correct.”
The defendant’s version of what happened must be construed from the suggestions made to the plaintiff during cross-examination as the defendant did not give evidence. But these suggestions were all denied by the plaintiff. Meanwhile, the important assertions made by the plaintiff remained substantially unchallenged. The plaintiff’s case that he pulled up abreast with the stationary vehicle of the defendant and that while the two vehicles were stationary there was an exchange of words between the parties, that he was the first to pull off and that the collision took place after that, was omitted by the trial judge when she stated the plaintiff’s case in her judgment. It was conceded by counsel for the defendant that the casewould turn one way or the other on the issue whether or not the two vehicles were stationary abreast at one point and whether or not the plaintiff was the first to move away. For if this [p.317] of [1972] 2 GLR 305 statement of the plaintiff was true then the defendant had some explanation to give. By omitting these important details that would help in deciding whether or not the plaintiff should be believed, the learned trial judge failed to give adequate consideration to the plaintiff’s case.
The defendant’s refusal to give evidence denied the plaintiff an opportunity to test the defendant’s
credibility by exposing his story to the rigours of cross-examination. The plaintiff, however, denied the suggestions made to him under cross-examination and since the defendant did not give evidence he placed no story before the court. Nevertheless, the learned trial judge held, “Having considered the rival stories of the plaintiff and the defendant, I have accepted that of the defendant as the more probable of the two.” Needless to say, the court cannot accept a story that was not before it. The defendant was bound by the plaintiff’s denials and there was no evidence giving any story other than that of the plaintiff. It was open to the trial judge to accept or reject the plaintiff’s story and give her reasons but it was not open to her to prefer a story that was not before her.
The trial judge seemed to have been unduly impressed by the proceedings in the criminal case before the magistrate’s court. The plaintiff was in that case charged with careless driving, and the defendant gave evidence for the prosecution. The plaintiff was not called upon to answer as the magistrate found no case made against him. However, his counsel cross-examined the defendant. This was what the trial judge referred to in her judgment as follows:
“The plaintiff denied emphatically that the accident occurred whilst he was overtaking the defendant’s vehicle on the offside but admitted later in cross-examination that during the hearing of the charge of careless driving preferred against him in connection with the accident in the district court it was a point of his case that the accident happened whilst he was overtaking the defendant’s vehicle.”
It is a little strange that the cross-examination of the defendant in the criminal case should have received such careful consideration from the trial judge when the evidence given before her which was substantially unchallenged was ignored by her.
It was submitted by the plaintiff’s counsel that the interpretation placed on the word “overtake” by the court below was not the only interpretation that could be placed on that word. I accept the submission that when a vehicle moves to the offside of the road in order to catch up with and pass the vehicle ahead, it is overtaking from that point to the point at which it reverts to its proper lane after having passed the other vehicle and so completed overtaking it. If the trial judge had not given the word “overtake” such an exceedingly narrow definition, she would have found that there was no conflict in the plaintiff’s case before the magistrate’s court and his evidence before her.
[p.318] of [1972] 2 GLR 305 It is true that a plaintiff must prove his case and not merely rely on the weakness of the defence but a plaintiff is also entitled to a fair and adequate consideration of his case. I consider the trial unsatisfactory and I would allow the appeal and remit the case to the court below for hearing de novo.
DECISION
Appeal dismissed.
J. D.
