BOATENG vs. OPPONG AND ANOTHER [1980]DLCA1047

Date	1980-02-28
Suit No.
Citation No.	[1980]DLCA1047

APALOO C.J.

ARCHER JA

ANIN J.A.

J. K. KODUA FOR THE APPELLANT.

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS.

[1980]DLCA1047
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													<main id="main" class="content" style="min-height: 60rem" >BOATENG<o:p></o:p>&nbsp;vs. <o:p></o:p>OPPONG AND ANOTHER<o:p></o:p>[COURT OF APPEAL, ACCRA] <o:p></o:p>[1980] GLR 946<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:
28 FEBRUARY 1980<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">

J. K. KODUA FOR THE APPELLANT.<o:p></o:p>

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS.<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">

APALOO C.J., ARCHER AND ANIN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANIN J.A.<o:p></o:p>At about
6 p.m. on 23 December 1968, a Kumasi tailor by name Kwaku Gyimah alias Dwomoh
hired the second defendant’s tro-tro lorry No. AT 9491 to convey him and his
mourning party to the funeral of his daughter at Kumawu Bodomase. Among the
passengers who undertook the trip was the plaintiff, a fellow tailor resident
at Kumasi; and the lorry was driven by the first defendant, a servant and
employee of the second defendant. The outward journey was uneventful. However,
on the return journey to Kumasi the same night, an accident occurred just after
a curve on the outskirts of Dadiase village. According to the plaintiff, the
driver drove the lorry so fast and negligently that “it ran into a ditch” and
he fell off the vehicle and sustained injuries for which he received medical
treatment for some period. This action was accordingly instituted in the High
Court, Kumasi, against the defendants jointly and severally for special and
general damages for the first defendant’s negligence.<o:p></o:p><o:p>&nbsp;</o:p>On the
issue of the accident, the second defendant (the owner of the lorry) in his
pleading stated that “the vehicle did not at any time run into the ditch as
averred by the plaintiff.” However, he refrained from giving his version of
what actually transpired on the day in question. Neither did he testify in
court. In contrast, his driver pleaded in paragraph (5) of his statement of
defence that in the course of the journey “one of his tyre rod ends came off
and he managed to stop his vehicle against a culvert thereby preventing an accident.”<o:p></o:p><o:p>&nbsp;</o:p><o:p>&nbsp;</o:p>In
evidence, the plaintiff attributed the accident to the excessive speed at which
the driver was driving on a dusty road coupled with his negligence in not
negotiating the curve safely, as a result of which the vehicle careered off the
road and collided against the concrete culvert and fell on its near-side. His
principal witness, Kwaku Gyimah, the bereaved tailor, gave an account of the
accident which amply corroborated the plaintiff’s in all essential particulars.<o:p></o:p>

If I may
quote the relevant portion:<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">“On our
return journey at the outskirts of Dadiase village the driver had to pass
through dusty road and the lorry got out of the driver’s hand and hit a
culvert. When it struck a culvert thus the plaintiff fell off the vehicle.”<o:p></o:p>To a
suggestion under cross-examination that it was the tyre rod ends which got off,
Kwaku Gyimah replied that it was not correct. “It was when the lorry hit the
culvert that an iron bar beneath got broken and the steering wheel could not be
turned. The two front tyres did not come off.”<o:p></o:p><o:p>&nbsp;</o:p>In his
testimony, the driver, the first defendant, confirmed that the lorry swerved
off the road in a curve and hit a culvert which stopped the lorry. He narrated:<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">“On the
journey back, at Dadiase, I was negotiating a curve when my steering tyre rod
lost its bolt. When the bolt came off I could not control the steering. I found
I was going into the bush so I tried to steer back into the road. I could not
[do] so. I applied my brakes and the lorry hit a culvert which chocked the
lorry.”<o:p><</main>