EWUDZIWA vs. ATTORNEY-GENERAL [1980]DLHC2126

Date	1980-11-19
Suit No.
Citation No.	[1980]DLHC2126

CECILIA KORANTENG-ADDOW J.

KWESI EPTON FOR THE PLAINTIFF.

MISS K. D. K. QUARTEY ASSISTANT STATE ATTORNEY FOR THE DEFENDANT

[1980]DLHC2126
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													<main id="main" class="content" style="min-height: 60rem" >EWUDZIWA <o:p></o:p>vs. <o:p></o:p>ATTORNEY-GENERAL <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1982-83] GLR 625<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:
19 NOVEMBER
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">

KWESI EPTON FOR THE PLAINTIFF. <o:p></o:p>

MISS K. D. K. QUARTEY, ASSISTANT STATE ATTORNEY,
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">

CECILIA KORANTENG-ADDOW J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF KORANTENG-ADDOW J.<o:p></o:p>On 18
November 1974, the plaintiff, a middle-aged woman, was waiting in the early
hours of the morning by the street at Kotokuraba in Cape Coast for transport to
convey her to Accra. A vehicle came along and she hailed it to stop. It was
police jeep No. GP. 449. Before she boarded, she noticed that it was a police
jeep, nevertheless she told the driver she was going to Accra and demanded to
know the fare. The driver charged her ¢2 for herself and her luggage. She
agreed and boarded the vehicle. The vehicle, police jeep No. GP. 449, was
driven by Constable Kofi Asare. At Anomabu the constable stopped and picked
three other passengers.<o:p></o:p><o:p>&nbsp;</o:p>The jeep
was moving at great speed. The plaintiff admonished the driver against
overspeeding but the driver told her he had been sent from Takoradi to Accra,
implying that he was in a hurry to get to Accra. Sometimes he paid heed to the
admonition, and slowed down, but generally his speed was high. At Mankesim the
plaintiff fell asleep. The next thing she realised was that she was lying ill
at Winneba Hospital, with serious injuries and in pain all over her body. The
police vehicle had been involved in an accident at about six miles from the
Winneba Junction towards Accra. She had multiple lacerations on the face, arms
and right leg. There were also deep lacerations on the upper part of the right
tibia with evulsion of the skin, and compound fracture of the right femur. At
the time she gave evidence, she was still continuing her treatment at the Korle
Bu Teaching Hospital. The court had to move to her bedside to record her
evidence. Dr. Korsah’s opinion of her condition at that stage was that the
plaintiff had three inches shortening of the right leg and that even though he
thought the plaintiff might be able to walk again, she would have a shortened
leg and a permanent stiff knee, and that that leg would only serve as a pillar
of support and will only be functional to a very low degree. At the stage of
her treatment, he assessed her incapacity at 55 per cent.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff is a housewife who did poultry farming on a very moderate scale, and
a lot of backyard gardening. As a result of this accident, she has had to
abandon completely these hobbies from which she derived financial support. She
is now a very unhappy and an unhealthy person. She brings this action against
the Attorney-General as a nominal defendant representing the government, the
employer of the driver in charge of the police jeep No. G.P. 449. The driver
himself was not made a party to the suit. This the plaintiff had a right to do
since the liability of master and servant is several and joint. Nevertheless,
the plaintiff must establish the negligence of the driver, since the
defendant’s liability is only vicarious.<o:p></o:p><o:p>&nbsp;</o:p>The
defendant denied the plaintiff’s charge of negligence, but offered no
explanation. The plaintiff herself was not in a position to tell how the
accident occurred; she is asking the court to hold that the circumstances of
the case are such that negligence must be inferred from the conduct of the
driver.<o:p></o:p><o:p>&nbsp;</o:p>The speed
at which the jeep was moving was so fast that the plaintiff on a number of
times had to warn the driver to reduce speed and drive with care. Excerpts from
the station diary at Winneba dated 18 November 1974 and contained in a letter
written by Mr. B. S. K. Kwakye, Assistant Commissioner of Police at the time to
the Attorney-General, shows how the accident occurred.<o:p></o:p><o:p>&nbsp;</o:p>This
letter was tendered by the defendant with no objection from the plaintiff.
According to the contents of this letter, exhibit 5, the driver of the jeep
(Asare) was approaching a stationary truck No. WR. 2683 which was properly
parked and lighted on the nearside of the road facing the Accra direction. When
he was about to overtake the truck, he saw a vehicle coming from the opposite
direction. The time was about 5.45 a.m. To avoid a head-on collision, he
applied his brakes but they failed and he ran</main>