KHOURY vs. CHOITEL [1964]DLSC1917

Date	1964-02-29
Suit No.
Citation No.	[1964]DLSC1917

ADUMUA-BOSSMAN JSC

MILLS-ODOI J.S.C

APALOO J.

J. B. QUASHIE-IDUN FOR THE APPELLANT.

K. NARAYAN FOR THE RESPONDENT.

[1964]DLSC1917
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													<main id="main" class="content" style="min-height: 60rem" >KHOURY <o:p></o:p>vs. <o:p></o:p>CHOITEL <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1964] GLR 100<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
29 FEBRUARY 1964.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

J. B. QUASHIE-IDUN FOR THE APPELLANT.<o:p></o:p>

K. NARAYAN FOR THE RESPONDENT.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

ADUMUA-BOSSMAN AND MILLS-ODOI JJ.S.C.
AND APALOO J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.<o:p></o:p>This is
an appeal from the judgment of the High Court, Accra, dated 11 February 1963.
That judgment awarded damages in favour of the plaintiff-respondent against the
defendant-appellant as a result of injuries sustained by the former in an
accident which took place on the Accra-Nsawam road on 25 November 1960.<o:p></o:p><o:p>&nbsp;</o:p>The facts
of the case are fairly straightforward and are substantially free from
complexity. They can be stated briefly. The plaintiff, who gave his age as 41
years, is by profession a mechanical engineer. He was also associated with a
company known as Ghana Woodwork Construction Limited and was at the date
material to this case, its managing director. On 25 November 1960 he was
driving a Fiat saloon car which belonged to his company from Nsawam to Accra.
The time was 10.30 p.m. or thereabouts. At a point between mile eight and nine,
he ran into a stationary Bedford truck which was parked on the nearside of the
road. Both he and his wife who was with him, sustained severe injuries. The
evidence shows that his wife succumbed to these injuries. The stationary
Bedford truck admittedly belonged to the defendant.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff claimed that the defendant was negligent inasmuch as he or his
servant left on the road in a manner which obstructed him, a lorry which was
wholly unlighted. For this, he sought damages. The defendant controverted the
allegation of negligence and for his part, put in the witness-box his watchman
Ali Moshie who was without doubt an eyewitness of the accident. The pith of
Moshie’s evidence was that the lorry in question developed engine trouble
earlier in the day and its lighting system had failed. An attempt to repair it
was unsuccessful. As the lorry had a full cargo of cocoa, the driver travelled
to Nsawam and reported this fact to the defendant. Accordingly, the defendant
ran him (Ali Moshie) whose normal job is that of a night watchman to the spot
on the road where the damaged vehicle got stuck, for a dual purpose, namely, to
watch the cocoa and keep it from the depredation of thieves and also to warn
approaching vehicles. To do this, Moshie said, he armed himself with a lantern
the type of which is pumped. This would be a petromax or some such kindred
lamp. This he said he put on top of the lorry about 6 p.m. after it was lit.<o:p></o:p><o:p>&nbsp;</o:p>According
to Moshie, while the lit lantern was in this position, many vehicles passed
from either direction without incident. He said that about 11 p.m., a car
(which turned out to be the plaintiff’s) came from Nsawam direction and
violently hit the stationary lorry from the rear. This vehicle was in full
speed and when it hit the lorry, it pushed it forward. Accordingly, the lamp
fell off the cocoa onto the road and got broken. Moshie said he thought the
driver of the car was drunk and so addressed him. When the truth of his story
was disputed in cross-examination he answered thus, “It is true that at the
time of the accident, there was a lantern on the lorry.”<o:p></o:p><o:p>&nbsp;</o:p>On the
issue which was joined on the facts, it seems to me that the question which the
learned trial judge must eventually answer is “Was there light or not on the
vehicle at the time the accident occurred?” The determination of this question
would, I apprehend, involve a reasoned appreciation of the case of both sides
by the learned trial judge. In this exercise, in my opinion, the case for the
defendant is entitled to no less consideration than the plaintiff’s. In an
effort to resolve the dispute and to determine the fact, the learned trial
judge made what strikes me as a copious resume of the evidence of the plaintiff
and an eye-witness Samir Eid called by him. Like the plaintiff, Eid also said
there was no light of any sort on the vehicle at the time of the accident. The
learned judge eventually found himself persuaded by the evidence of the
plaintiff and Eid and he expressed his acceptance of it. But before doing this,
he did not address his mind to the inherently credible story told by the
defendant’s witness Ali Moshie. He did not recite any of the facts put forward
on behalf of the defendant. He rejected en masse the whole of Ali’s evidence on
the ground that Ali Moshie did not impress him as a witness of truth. He then
proceeded to find, although not expressly, but by necessary implication that
the vehicle had no light at the time of the accident. He held that the
unlighted vehicle constituted a dangerous obstruction.<o:p></o:p>