DARKWAH vs. DENTEH AND OTHERS [1972]DLCA2215

Date	1972-07-03
Suit No.
Citation No.	[1972]DLCA2215

PREMPEH J.S.C

JIAGGE JA

SOWAH J.A.

U. V. CAMPBELL FOR THE APPELLANT.

E. D. KOM FOR THE SECOND RESPONDENT.

NO APPEARANCE BY OR FOR THE CO-RESPONDENT.

[1972]DLCA2215
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													<main id="main" class="content" style="min-height: 60rem" >DARKWAH <o:p></o:p>vs. <o:p></o:p>DENTEH AND OTHERS <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1972] 2 GLR 305<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
3 JULY 1972.<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">

U. V. CAMPBELL FOR THE APPELLANT.<o:p></o:p>

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

NO APPEARANCE BY OR FOR THE CO-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">

PREMPEH J.S.C., JIAGGE AND SOWAH JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF SOWAH J.A.<o:p></o:p>This is
an appeal from a judgment of a learned judge of the Circuit Court, Kumasi, in
which she dismissed the claim of the plaintiff against the defendants in
respect of the alleged negligence of the second defendant in the manner in
which he drove his vehicle No. AN 5947 on 5 February 1965, holding that the
plaintiff had not discharged the onus of establishing that the second defendant
was negligent. The co-defendant’s alleged liability was vicarious, he being the
master of the second defendant.<o:p></o:p><o:p>&nbsp;</o:p>In view
of the divergence of views I think it necessary for the proper appreciation of
the findings of the learned judge to reproduce almost in full the evidence of
the plaintiff and, in part, the cross-examination which ensued.<o:p></o:p>The
plaintiff in his evidence-in-chief stated as follows:<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">“I
remember on Friday 5 February 1965 I was driving my vehicle No. AT 7070 in the
Effiduase-Ejisu road and on reaching the outskirts of Juaben I sighted a
Mercedes Benz bus No. AN 5947 ahead of my vehicle going in the same direction
as mine. My vehicle was about 60 feet behind this Benz bus. The driver of the
Benz stopped his vehicle abruptly in order to pick up a passenger without any
warning. Because of the position in which the driver of this Benz placed me I
had to overtake the Mercedes Benz in order not to run into the back. As I was
overtaking the Mercedes bus I sighted another Morris J bus coming from the
opposite direction. In order to avoid a head on collision with the Morris J bus
I swerved my vehicle to the nearside of the road in order to avoid colliding
with the Morris J and my vehicle was positioned behind the Mercedes Benz bus to
allow the Morris J bus to pass. After the Morris J bus had passed I drove on
and parked my vehicle abreast with the Benz bus and questioned the driver of
this bus why he drove without warning or signals to other users of the road.
The driver of this vehicle Kwasi Amponsah asked me why I posed that question to
him and I replied that, did he notice that without signalling me I nearly
collided with the Morris J bus and he retorted that I am not the right person
to teach him good driving. When I found that he was not co-operative I drove off
as my vehicle was stationary on the wrong side of the road. Having driven to a
distance of 70-80 feet I heard a bang at the rear nearside of my vehicle so I
stopped. I alighted from the vehicle to find out what had happened. I found
that the Mercedes Benz bus had run into the rear nearside mudguard of my
vehicle and caused damage to it and the tail lights. The edge of the near side
rear bumper got bent.”<o:p></o:p><o:p>&nbsp;</o:p>Thereafter
he gave an account of his actions after the accident and proceeded thus:<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">“It was
the offside front door lunges of the defendant’s Mercedes Benz which damaged
the bumper of my vehicle. The front mudguard of the Benz bus also hit the rear
nearside bumper of my vehicle. I put to the defendant that through his
carelessness he had caused damage to my car but he said nothing.”<o:p></o:p><o:p>&nbsp;</o:p>According
to the plaintiff the road was 20 feet wide. The second defendant’s vehicle
occupied eleve</main>