TISHIGU AND ANOTHER vs. ABUDULAI DAGOMBA AND OTHERS [1967]DLHC1548

Date	1967-05-11
Suit No.
Citation No.	[1967]DLHC1548

ANNAN J.

E. O. APPIAH FOR THE PLAINTIFFS.

E. D. KOM FOR THE FIRST AND THE THIRD DEFENDANTS.

H. P. SWANIKER FOR THE SECOND AND THE FOURTH DEFENDANTS.

[1967]DLHC1548
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													<main id="main" class="content" style="min-height: 60rem" >TISHIGU AND ANOTHER <o:p></o:p>vs. <o:p></o:p>ABUDULAI DAGOMBA AND OTHERS <o:p></o:p>[HIGH COURT, TAMALE]<o:p></o:p>[1967] GLR 306<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:
11 MAY 1967<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. O. APPIAH FOR THE PLAINTIFFS.<o:p></o:p>

E. D. KOM FOR THE FIRST AND THE THIRD DEFENDANTS.<o:p></o:p>

H. P. SWANIKER FOR THE SECOND AND THE FOURTH DEFENDANTS.<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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANNAN J.<o:p></o:p>The
plaintiffs claim damages for injuries suffered by them in a motor accident on
the Tamale—Kumbungu road. The accident occurred at about 7 p.m. and there were
two vehicles involved. The vehicles were travelling in opposite directions and
the plaintiffs were in one vehicle sitting one behind the other at the extreme
right-hand side. The only account given as to the accident itself is that of
the plaintiffs.<o:p></o:p><o:p>&nbsp;</o:p>In the
statement of claim the plaintiffs set out several particulars of negligence.
They also relied on the maxim res ipsa loquitur. It is quite clear that the
evidence given by the plaintiffs showed that the two vehicles came into contact
when they were passing by each other, This evidence was not challenged or
contradicted by the defendants.<o:p></o:p><o:p>&nbsp;</o:p>Apart
from the evidence of the plaintiffs there is the evidence of the pleas of
guilty of the drivers of the two vehicles to charges brought under regulation
31 (2) (a) of the Road Traffic Regulations, 1957 (L.N. 135 of 1957), namely
that on 2 June 1965 on the Tamale—Kumbungu road they drove motor vehicles No.
AT 5984 and AN 2521 the overall width of which exceeded the maximum width of
7ft. 6in. by four inches in each case. The plaintiffs relied on the evidence of
the pleas of guilty as some evidence of negligence. The defendants did not
admit negligence in their pleadings and did not call any evidence.<o:p></o:p>From the
pleadings the onus was on the plaintiffs to establish that the first and the
second defendants, the drivers, were negligent. Neither plaintiff could tell
what actually caused the accident. The first plaintiff said that the vehicles
“grazed each other.” Apart from” this evidence there is nothing else as to the
nature of the contact between the two vehicles. The plaintiffs rely on this
evidence as the evidence of a collision between the two vehicles. Granted that
these accounts, uncontradicted as they are, afford evidence of. a collision
there is nothing else to show the kind of collision it was. The suggestion I
take is that this was a head-on collision between two vehicles travelling in
opposite directions. Such a suggestion could be made no doubt with a certain
line of cases in mind, the leading case being that of Baker v. Market
Harborough Industrial Co-operative Society, Ltd. [1953] 1 W.L.R. 1472, C.A.
Apart from this case there are also such cases as France v. Parkinson [1954] 1
AU E.R. 739, C.A. and Price v. Price, The Times, 12 February 1954, unreported,
C.A.<o:p></o:p><o:p>&nbsp;</o:p>The issue
of fact I have to decide is whether the plaintiffs have discharged the onus on
them to prove negligence. Have they put before me such evidence as would
justify a finding of negligence on the balance of probabilities?<o:p></o:p>Taking
first the evidence of the collision as given by the plaintiffs the question is
whether that is evidence of negligence in either the first or the second
defendant or both. In Baker v. Market Harborough industrial Co-operative
Society Ltd. (supra) a case of a head-on collision, it appears to me that the
decision was influenced materially by the nature of the collision, i.e. a
head-on collision, and the view formed by the trial court that the offside
wheel of one or other vehicle or perhaps both had crossed the white line and
hence the decision that it was more likely that both drivers were to blame than
one only. I do not think that this case is any authority for a proposition that
a collision per se affords evidence of negligence against one driver or the
other or both. In this connection the case of France v. Parkinson [1954] 1 All
E.R. 739, C.A. is of interest. In that case there was a collision at
cross-roads of equal status in the middle of the cross-roads, each car being on
its right side of the road. Although the decision in that case was that the
inference to be drawn on the facts was that both drivers—in the absence of
special circumstances—were negligent, the decision was influenced by matters
other than the mere fact of collision on the highway. Thus the court attached
considerable importance to the statement made by the defendant soon after the
collision that the two cars had met in the middle of the road. There was
evidence concerning the position</main>