KWARTENG vs. SEI AND ANOTHER [1966]DLHC1711

Date	1966-01-21
Suit No.
Citation No.	[1966]DLHC1711

DJABANOR J.

K. A. AGYEPONG FOR THE PLAINTIFF.

FIRST DEFENDANT IN PERSON.

E. D. KOM FOR THE SECOND DEFENDANT.

[1966]DLHC1711
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													<main id="main" class="content" style="min-height: 60rem" >KWARTENG <o:p></o:p>vs. <o:p></o:p>SEI AND ANOTHER <o:p></o:p>[HIGH COURT, SEKONDI]<o:p></o:p>[1966] GLR 42<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:
21 JANUARY 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">

K. A. AGYEPONG FOR THE PLAINTIFF.<o:p></o:p>

E. D. KOM FOR THE SECOND 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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF DJABANOR J.<o:p></o:p>In this
action the plaintiff is claiming from the two defendants damages for personal
injuries caused to him by the negligent driving of the first defendant, the
servant or agent of the second defendant. When the first defendant, then the
only defendant, was served with the writ of summons and the statement of claim
in the case, counsel entered appearance for him and filed a statement of
defence on his behalf. It appears that subsequently this counsel withdrew from
the case and Mr. Kom notified the court that he was now appearing for the
defendant. At that time, 27 August 1964, the only defendant was Kwaku Sei.
Until this time the statement of defence filed by Mr. Okorley, the first
counsel for the defendant Kwaku Sei, was to the effect that Kwaku Sei was the
owner of the lorry that caused the accident in which the plaintiff was injured.
The defendant also then pleaded that the accident was caused by inevitable
accident due to the slippery surface of the road. Damages were also put in
issue.<o:p></o:p><o:p>&nbsp;</o:p>In due
course the hearing of the case started and it appears that in the middle of the
defendant’s evidence the trial was adjourned for the plaintiff to join the
second defendant as co-defendant. This was done and the second defendant was
served with the relevant pleadings in the case. After the second defendant had
filed his statement of defence by himself, the court granted leave for the
plaintiff to file an amended writ and statement of claim, copies of which were
served on the two defendants. It does not appear that either of them amended
his statement of defence thereafter. But the whole trial was fought on the
issues as between the defendants whether the second defendant had sold the
vehicle to the first defendant before the accident, i.e. whether the vehicle
was at the material time owned by the first defendant who was then driving it,
or by second defendant, who said he had sold it to the first defendant.<o:p></o:p><o:p>&nbsp;</o:p>Mr. Kom,
it turned out, in fact was appearing not for the first defendant but for the
second defendant, and the first defendant had no counsel. Mr. Kom for the
second defendant did not contest the question of negligence or otherwise of the
first defendant, he was denying the liability of the second defendant so he
only tendered a document and called no witnesses.<o:p></o:p><o:p>&nbsp;</o:p>The
issues which I had to try were: <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(a) Whether the fist defendant,
the diver, was negligent in his driving; <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(b) Who owned the vehicle the
first defendant was driving, i.e. AN 5510; <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(c) In the circumstances could
the second defendant be held vicariously liable for the first defendant’s
negligence in driving the vehicle; and <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(d) The quantum of damages.<o:p></o:p><o:p>&nbsp;</o:p>I will
now deal with these issues, the first is whether or not the first defendant was
driving the vehicle negligently at the time of the accident. It is not disputed
that the vehicle, while bein</main>