BERFI vs. OWUSU [1966]DLHC1664

Date	1966-06-22
Suit No.
Citation No.	[1966]DLHC1664

BAIDOO J.

J. H. BENJAMIN FOR THE PLAINTIFF.

K. G. OSEI-BONSU FOR THE DEFENDANT.

[1966]DLHC1664
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													<main id="main" class="content" style="min-height: 60rem" >BERFI <o:p></o:p>vs. <o:p></o:p>OWUSU <o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p>[1966] GLR 583<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:
22 JUNE 1966.<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. H. BENJAMIN FOR THE PLAINTIFF.<o:p></o:p>

K. G. OSEI-BONSU FOR THE DEFENDANT.<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">

BAIDOO J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF BAIDOO J.<o:p></o:p>I believe
the evidence of the plaintiff that on 2 March 1962 as he was travelling from
Senchem on his motor vehicle No. AN 1748 the defendant’s timber truck No. AN
7807 loaded with timber logs and travelling in the same direction towards
Kumasi at a terrific speed tried to overtake his, the plaintiff’s vehicle which
was then loaded with some 22 passengers, the plaintiff’s vehicle being a one
and half ton Bedford commercial lorry. According to the plaintiff the incident
happened near Potrikrom about 27 miles from Kumasi at a portion of the road
which was so narrow that the defendant’s driver should not have attempted to
overtake the plaintiff’s vehicle at all, but the defendant’s driver negligently
drove on at a terrific speed and as he was about to overtake the plaintiff’s
vehicle, the defendant’s driver so recklessly drove the defendant’s timber
truck that an iron bar fixed on the timber truck hooked the plaintiff’s vehicle
which was thereby pushed with great force into the ditch on the left hand or
near side of the road as one faces Kumasi. The plaintiff himself received
severe head injuries and he lost consciousness as a result of the accident.<o:p></o:p><o:p>&nbsp;</o:p>One of
the passengers travelling on the plaintiff’s lorry at the time was Kofi
Karikari who was also injured. He gave evidence as the plaintiff’s first
witness confirming the plaintiff’s evidence. The defendant never once attended
court and he failed therefore to give any evidence in opposition. Three
inconsistent pleadings were in the course of the proceedings filed by the
defendant’s solicitors. In the defendant’s original pleadings filed on 8 May
1964 the defendant agreed with the plaintiff that the accident happened when
the defendant’s timber truck was trying to overtake the plaintiff’s lorry. On 7
September 1964 the defendant amended his pleadings and stated that it was
rather the plaintiff’s vehicle which was overtaking the defendant’s timber
truck when the accident happened. Then on 19 October 1965 the defendant’s
solicitors filed yet another amended pleadings this time stating that the
defendant “neither owned vehicle No. 7807 on 2 March 1962, nor was the said
vehicle involved in any accident on that date.” However the defendant failed to
adduce any evidence to support his defence and as I believe the plaintiff and
the plaintiff’s first witness, Kofi Karikari, I find as a fact that the
accident happened when the defendant’s heavily loaded timber truck was trying
to overtake the plaintiff’s smaller vehicle, and that the defendant’s driver
drove at a terrific speed and in a negligent manner and that the accident was solely
caused by the negligence of the defendant’s driver. I am satisfied in the
evidence adduced before me that the police inspector at Mankranso failed to
prosecute the defendant’s driver, Yaw Manu, for no good reason although the
said driver was pointed out by the plaintiff’s first witness to a police
officer who was conveying the plaintiff, the plaintiff’s first witness and
other injured persons to Kumasi Central Hospital. I believe the plaintiff’s
first witness’s evidence that when the accident occurred the defendant’s driver
failed to stop but drove away; that a police vehicle on patrol duties arrived
on the scene soon after the accident and that as one of the constables was
conveying the injured person to Kumasi Central Hospital, the defendant’s driver
who had parked the timber truck at mile eighteen on the Kumasi road was pointed
out by the plaintiff’s first witness, a letter-writer, to the police officer
who arrested the defendant’s driver Yaw Manu and took him to Mankranso Police
Station.<o:p></o:p><o:p>&nbsp;</o:p>I am
satisfied on the evidence that although the plaintiff’s first witness reported
to the Mankranso police two days later as soon as he was discharged from the
Kumasi Hospital and although the police took down the plaintiff’s first
witness’s statement which clearly indicated that the defendant’s driver was to
blame, yet the police failed to charge the defendant’s driver before the court.
I believe from exhibit C, the plaintiff’s petition to the police, and the
plaintiff’s evidence that the plaintiff reported the conduct of the police
inspector at Mankranso to the Commissioner of Police in Accra and also to the
Assistant Commissioner of Police, Kumasi, for refusing to charge the
defendant’s driver and that the said police inspector out of sheer spite
charged rather the plaintiff for permitting the use of his vehicle which had a
defective hand brake, a charge which according to the plaintiff was dismissed
by the magistrate.<o:p></o:p><o:p>&nbsp;</o:p>The
driver of the plaintiff was also charged with careless driving and appeared in
court for the first time on 22 May 1963 and on subsequent dates and pleaded not
guilty. On 3 June 1963 the plaintiff‘s driver changed his plea to guilty and
was fined. I believe the plaintiff‘s evidence that he had no knowledge that his
driver ever pleaded guilty. The driver’s change of plea however does not estop
the plaintiff in any way. The driver must have got fed up with the whole</main>