KYEREMATEN vs. AMADU [1972]DLHC2232

Date	1972-06-02
Suit No.
Citation No.	[1972]DLHC2232

EDUSEI J.

A. H. SACKEYFIO FOR THE PLAINTIFF.

E. B. SEKYI HUGHES FOR THE DEFENDANT.

[1972]DLHC2232
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													<main id="main" class="content" style="min-height: 60rem" >KYEREMATEN <o:p></o:p>vs. <o:p></o:p>AMADU <o:p></o:p>[HIGH COURT,
SEKONDI]<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 344<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:
2 JUNE 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">

A. H. SACKEYFIO FOR THE PLAINTIFF.<o:p></o:p>

E. B. SEKYI HUGHES 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">

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

</div><o:p>&nbsp;</o:p>JUDGMENT OF EDUSEI J.<o:p></o:p>The
plaintiff’s claim against the defendant is for general damages and loss of
earnings resulting from the negligence of the defendant’s servant, Joseph K.
Duodu, by which his timber truck was damaged. The plaintiff was the owner of a
timber truck with registration No. GJ 996, and the defendant is a transporter
and owner of Morris bus No. GJ 1459. The driver of the Morris bus at the
material time was one Joseph K. Duodu, the plaintiff’s first witness.<o:p></o:p><o:p>&nbsp;</o:p>The facts
of the case are that on or about 14 August 1970, the plaintiff’s timber truck
with logs was being driven from Abura Dunkwa towards Cape Coast and the
defendant’s Morris bus was going from Cape Coast towards Abura Dunkwa. The two
vehicles were travelling in opposite directions.<o:p></o:p><o:p>&nbsp;</o:p>At a
point near a village called Taidu the defendant’s driver swerved in a curve to
the right and the plaintiff’s driver in attempt to avoid a head-on collision
also swerved further to his left side and in so doing landed the timber truck
in a pond by the road side. The timber truck was damaged beyond economic repair
and it is on these facts that the plaintiff has founded his claim in negligence
against the defendant.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant has denied negligence and contended also that at the time of the
accident the defendant’s driver had been prohibited from plying beyond the
Sekondi-Takoradi City Council area; that is, the driver Duodu was on a frolic
of his own when the plaintiff’s timber truck got damaged.<o:p></o:p>It is
quite clear from the pleadings that two issues emerged for determination by the
court, namely:<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 or not the
defendant’s driver was negligent, 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">(b) whether or not the
defendant’s driver was on a frolic of his own.<o:p></o:p><o:p>&nbsp;</o:p>The
evidence of the defendant’s driver, the plaintiff’s first witness who gave
evidence for the plaintiff stated that he was driving Morris bus No. GJ 1459
from Cape Coast towards Fosu direction. At a place called Taidu he saw a flock
of sheep crossing from his nearside to the offside of the road and, in attempt
to avoid hitting them, he swerved to his offside, and just at that time the
driver of the timber truck was coming on his proper side of the road and that
driver also moved further to his nearside with a view to avoiding a head-on
collision with the Morris bus and in so doing the timber truck fell on its
side. The driver of the Morris bus did not stop, but sped on for fear of
molestation by people around. The evidence of the plaintiff’s first witness
which I accept is that at the time he saw the sheep from his nearside there was
a culvert ahead of him and that at the time he swerved to his right side the
timber truck was only fifteen yards away from him. Here was the plaintiff’s
first witness, the defendant’s driver, who was approaching a culvert in a curve
and he saw a flock of sheep crossing from his nearside to the offside. What was
the reasonable thing for him to have done in those </main>