KLUTSE AND ANOTHER vs. NELSON [1965]DLSC1816

Date	1965-06-28
Suit No.
Citation No.	[1965]DLSC1816

MILLS-ODOI JSC

APALOO JSC

SIRIBOE J.S.C.

E. D. KOM FOR THE APPELLANTS.

VICTOR OWUSU FOR THE RESPONDENT.

[1965]DLSC1816
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													<main id="main" class="content" style="min-height: 60rem" >KLUTSE AND ANOTHER <o:p></o:p>vs. <o:p></o:p>NELSON <o:p></o:p>[SUPREME COURT]<o:p></o:p>[1965] GLR 537<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:
28 JUNE 1965.<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">

E. D. KOM FOR THE APPELLANTS.<o:p></o:p>

VICTOR OWUSU 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">

MILLS-ODOI, APALOO AND SIRIBOE JJ.S.C.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.S.C<o:p></o:p>This is
an appeal from the judgment of Acolatse J. (as he then was) delivered on 28
January 1964. By that judgment, the court awarded in favour of the respondent
(hereinafter called the plaintiff) damages in a collision. The appellants will
hereafter be referred to as the first and second defendants. The facts of this
case are comparatively simple although there is a sharp area of disagreement
between the parties. The plaintiff who is a telephonist in the employment of
the Ghana Police Service lived at Tema. At about 6 a.m. on 23 June 1962, she
joined a Mercedes Benz bus with the registration number AF 7369 bound for
Accra. She was with about 21 other passengers in a bus driven by one Ebenezer
Otu Laryea.<o:p></o:p><o:p>&nbsp;</o:p>At the
outskirts of Teshie, this bus was in collision with a tipper truck belonging to
the second defendant company and driven at that time by their driver and
servant, the first defendant. The plaintiff claimed that that accident was
caused by the negligent driving of the said first defendant. The plaintiff, as
is not disputed, sustained fairly serious injuries in this accident and is, to
a certain extent, permanently incapacitated as a result of these injuries. The
negligence which the plaintiff charged against the first defendant was
particularised in her statement of claim as follows: first, driving at an
excessive speed; secondly, failure to apply his brakes in sufficient time to
avoid hitting the bus and thirdly, failure to exercise due care and skill in
the management of the tipper truck.<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>The first
defendant denied that he had been negligent in the manner particularised or in
any other manner and pleaded that the accident was caused by a Volkswagon car
which forced its way between the bus and the tipper truck. The first defendant
did not give any details as to how the action of the Volkswagon car
necessitated the collision, but the plaintiff was apparently satisfied with
this somewhat meagre information and joined issue with the first defendant.
Accordingly, when summons for directions was taken out, the only issue agreed and
ordered to be tried on the question of liability was as follows: “Whether or
not the first defendant was guilty of negligence.”<o:p></o:p><o:p>&nbsp;</o:p>By that
issue, the plaintiff took upon herself the onus of proving that the first
defendant was guilty of negligence in the manner alleged by her and set out in
the particulars. When the trial opened on 7 January 1964, she herself gave
evidence and was supported by the driver of the bus in which she rode. The
first defendant in turn gave evidence of the accident and his version of how
the accident happened was corroborated by one Samson Krah, who said he was an
eyewitness of the accident and sat on the front seat by the first defendant on
the fateful day. After the conclusion of evidence, the learned trial judge
reserved judgment which he delivered on 28 January 1964. A substantial portion
of that judgment consisted of a somewhat tedious recital of the evidence of
both parties. The learned judge nowhere expressed acceptance of the plaintiff’s
version of how the accident occurred but he unequivocally rejected the first
defendant’s account of how it happened but gave no reason for this. He seemed
to have considered that this case came within the doctrine of res ipsa loquitur
and, having rejected the defendant’s explanation of the accident, proceeded to
hold that the first defendant was guilty of negligence, and awarded damages in
favour of the plaintiff.<o:p></o:p><o:p>&nbsp;</o:p>It is
against this judgment that the defendants appeal to this court. The notice of
appeal contained five grounds of appeal including the never failing one that,
“The judgment is against the weight of evidence.” This was argued together with
the defendants’ most serious ground of appeal, namely, that the trial judge was
wrong in holding that the first defendant was negligent. On these grounds,
counsel for the defendants referred us to various portions of the evidence and
submitted that the first defendant’s account was the more probable of the two
and should have been accepted. He argued that not only was Laryea, the
plaintiff’s witness, a person interested in the result of this suit, but had in
the magistrate’s court sworn the</main>