YAKUBU vs. DOVE AND ANOTHER [1977]DLCA1438

Date	1977-05-17
Suit No.
Citation No.	[1977]DLCA1438

AMISSAH JA

SOWAH JA

KINGSLEY-NYINAH J.A.

AFRIFA FOR THE APPELLANT.

J. B. O. POBEE FOR THE RESPONDENTS.

[1977]DLCA1438
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													<main id="main" class="content" style="min-height: 60rem" >YAKUBU <o:p></o:p>vs. <o:p></o:p>DOVE AND ANOTHER <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1977]1 GLR 281<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:
17 MAY 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">

AFRIFA FOR THE APPELLANT.<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">

AMISSAH, SOWAH AND KINGSLEY-NYINAH
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF KINGSLEY-NYINAH J.A.<o:p></o:p>Kingsley-Nyinah
J.A. [stated the facts as summarised in the headnote and continued:] In all the
circumstances of the case, therefore, I would hold that negligence firmly
attached to the appellant both in the careless manner of his riding, in his
lack of reasonable foresight, and in the misguided reliance he placed in that
invalid beckoning signal he solicited from the driver of the waiting Toyota
truck, his own witness, The driver of that stationary Toyota truck was Abdul
Karim who testified as the appellant’s second witness. It is a matter of no
mean significance that his evidence contradicted that of the appellant in a
couple of very material particulars, and weakened, therefore, the central core
of the appellant’s allegation of negligence against the second respondent.
Testifying under cross-examination, this witness said: “It is correct that a
vehicle going to turn to the right from a major road must move into the middle
of the road to allow all vehicles to pass by on either side of that vehicle.”
(The emphasis is mine.) This accords with the proviso to regulation 44 (2) of
the Road Traffic Regulations, 1970 (L.I. 675). With that knowledge firmly
established in this witness, his answer to another question went a long way
firstly, to exonerate the second respondent from blame for carelessness and
negligence and then, furthermore, to consolidate and strengthen that disclaimer
of liability for the accident urged and persisted in by the respondents. The
plaintiff’s second witness testified as follows: “It is correct that the Fiat
car had room to pass by the nearside of my vehicle and the accident occurred on
the nearside of my vehicle when the Fiat car attempted to overtake my vehicle
on the nearside.” (The emphasis is mine.) This materially contradicts the
appellant’s assertion that there was no room along the left side of the road
for through vehicular passage past the stationary Toyota. That answer, to my
mind, was enough to sweep away the unfavourable impression carried in paragraph
(8) of the appellant’s statement of claim: that the second respondent was in
such unhealthy haste that, against all good sense (because there was no room),
he forcibly drove past a whole line of other vehicles, then stationary behind
the big Toyota truck and, thereby, endangered the appellant.<o:p></o:p><o:p>&nbsp;</o:p>I am not
aware of any rule, regulation, or law (and none has been brought to our
attention here, in this present appeal), which says that if, while waiting in a
traffic jam (such as happened at the Bantama-Kejetia—Nurses’ quarters junction),
some opening presents itself to a motorist to take advantage of a safe and free
passage (such as the plaintiff’s second witness testified was in being within
the neighbourhood of the stationary and waiting Toyota truck), he must not take
it, but must rather wait for as long as the traffic hold-up continued. It is my
opinion that, travelling towards Bantama, as the second respondent was, he was
at liberty to avoid the hold-up by jumping the queue, and then, driving along
that left, free side of the main road (but he had to do so with such care,
alertness and attention as would enable him to avert any reasonably foreseeable
danger which might suddenly arise), to continue on towards Bantama. Because the
driver of the Toyota truck had positioned his truck in such a way as to leave a
free passage to the left of it, which the second respondent rightly exploited,
I would hold that since nothing has been urged here to satisfy us that the
manner of the second respondent’s driving was reckless and truly without due
care and attention, we cannot hold the second respondent guilty of a breach of
any legal or statutory duty.<o:p></o:p><o:p>&nbsp;</o:p>Although
the driver of the Toyota truck did well to have so positioned his vehicle at
the junction as to allow a free passage for onward travel towards Bantama,
disapproval must also, I think, be registered of the beckoning signal whereby
he so improperly invited the appellant to cross on to the major road. That act
was done in unknowing contravention of the Road Traffic Regulations, 1970 (L.I.675).
According to regulation 43 (1), which sets out provisions relating to 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">“Any
person driving or in charge of a motor vehicle when used on any road shall at
all times when driving retain complete control over the vehicle and have full
visibility of the traffic and—. . . (f) shall make use of the hand-signals
prescribed in the Fifth Schedule and shall pay regard to such signals when used
by other persons: Provided that mechanical or electrically operated direction
indicators fitted to a vehicle in accordance with provisions of these
Regulations may be used for indicating that he intends to turn to the right or
left.”<o:p></o:p>Regulation
44 (8), also says that, “No person riding in or on any vehicle, other than its
driver, shall make use of the hand signals prescribed in the Fifth Schedule.”
On the vital matter of hand signals, the Fifth Schedule to L.I. 675 provides
that:<o:p></o:p>