ANSAH vs. BUSANGA [1976]DLCA356

Date	1976-06-21
Suit No.
Citation No.	[1976]DLCA356

ARCHER J.A

ANIN J.A

HAYFRON-BENJAMIN J.A.

SEKYI HUGHES FOR THE APPELLANT

AMUA-SEKYI FOR THE RESPONDENT.

[1976]DLCA356
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >ANSAH <o:p></o:p>vs. <o:p></o:p>BUSANGA<o:p></o:p>&nbsp;[COURT
OF APPEAL, ACCRA]<o:p></o:p>[1976] 2 GLR 488<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:
21 JUNE 1976.<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">

SEKYI HUGHES FOR THE APPELLANT.<o:p></o:p>

AMUA-SEKYI FOR THE 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">

ARCHER, ANIN AND HAYFRON-BENJAMIN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANIN J.A.<o:p></o:p>This is
an appeal by the first defendant only (the appellant for short) from the
judgment of the Takoradi Circuit Court dated 10 March 1971, awarding ¢1,700.00
damages in favour of the plaintiff (the respondent herein) in an action
instituted under the Civil Liability Act, 1961 (Act 176), in respect of the
death of his brother, Adama Busanga.<o:p></o:p><o:p>&nbsp;</o:p>The gist
of the respondent’s case was that on the day in question at about 7 p.m. the
late Adama Busanga, an employee of the appellant was on board the appellant’s
vehicle as it was being driven by his driver and servant, the second defendant.
They were travelling from Aboso towards Tarkwa; and on reaching the A.B.A.
junction, the second defendant so carelessly drove the vehicle that it went off
the road into a ditch, thereby causing the death of Adama Busanga.<o:p></o:p><o:p>&nbsp;</o:p>In the
court below the case was contested by the appellant only. Having been duly
served with the writ of summons, the second defendant failed to enter
appearance or to file any defence. Consequently, interlocutory judgment was
signed against him, leaving damages to be assessed later. For his part, the
appellant offered no evidence in response to the plaintiff’s case which was
closed after his testimony; and the appellant’s counsel thereafter made a
submission of no case to answer. Learned counsel announced further that if his
submission was overruled, his client would offer no evidence.<o:p></o:p>

The trial
judge’s reserved ruling and judgment went in favour of the respondent. He held
that the second defendant had, by his conduct in pleading guilty to the
criminal charges arising from the accident, and by his conduct in not
contesting the action and suffering interlocutory judgment to be signed against
him, admitted negligence and liability to the action. He also found that a
prima facie case of negligence had been established against the appellant. The
facts admitted or proved raised the maxim res ipsa loquitur in his favour; for
“vehicles managed with due care and skill do not go off the road and end up in
the bush.” He also held that the vicarious liability of the appellant for the
second defendant had been sufficiently established. Having admitted his
ownership of the vehicle in his pleading, the appellant must be presumed to be
the master of the driver who negligently drove the vehicle; and the latter must
also be presumed to have acted in the course of his employment. The allegations
of negligence, dependency and other ingredients of the action contained in the
claim, not having been specifically traversed, must be deemed to be admitted.
In the event, the plaintiff was entitled to judgment against both defendants
for the sum of ¢1,700 on his claim.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant appealed to this court on no fewer than eleven grounds which were but
variations on two main themes: firstly, the judge erred in holding that a prima
facie case of negligence had been made out against him at the close of the
respondent’s case; and secondly, that he further erred in holding the appellant
vicariously liable for the second defendant’s negligence.<o:p></o:p><o:p>&nbsp;</o:p>On the
negligence issue, Mr. Sekyi Hughes submitted that the fact that a vehicle was
found lying off the road in a bush did not necessarily imply negligence against
the driver. The maxim res ipsa loquitur was inapplicable to the facts of this
case; and he relied on the dictum of Fletcher Moulton L.J. in Wing v. London
General Omnibus Co. [1909] 2 K.B. 652 at p. 664, C.A. that “the fact that an
accident has happened either to or through a particular vehicle is by itself no
evidence that the fault, i</main>