BORKLOE AND ANOTHER vs. NOGBEDZI AND ANOTHER [1983]DLCA2105

Date	1983-06-08
Suit No.
Citation No.	[1983]DLCA2105

JIAGGE JA

MENSA BOISON JA

ABBAN J.A.

MISS AMASSAH SENIOR STATE ATTORNEY FOR THE APPELLANTS.

A. A. ACKUAKU FOR THE RESPONDENTS.

[1983]DLCA2105
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													<main id="main" class="content" style="min-height: 60rem" >BORKLOE AND ANOTHER <o:p></o:p>vs. <o:p></o:p>NOGBEDZI AND ANOTHER <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1982-83] GLR 1003<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DATE:
8 JUNE 1983<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">

MISS AMASSAH SENIOR STATE ATTORNEY, FOR THE
APPELLANTS. <o:p></o:p>

A. A. ACKUAKU FOR 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;
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JIAGGE, MENSA BOISON AND ABBAN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF MENSAH BOISON J.A.<o:p></o:p>Mensah
Boison J.A. delivered the judgment of the court. This is an appeal against the
decision of the High Court, Ho, dated 10 November 1980. By that judgment the
appellants (hereafter called the defendants) were found liable in substantial
damages for damage caused to the five-ton Bedford tanker of the first
respondent (hereafter called the owner) as a result of the negligent driving of
the first defendant.<o:p></o:p><o:p>&nbsp;</o:p>The facts
which gave rise to the action were straight-forward, and may be briefly stated.
On 17 April 1978, the owner of the tanker and the second respondent (hereafter
called the second plaintiff) as the driver in charge of the tanker, registered
as No. GL 4146, were travelling from Tema to Denu, when at a point near Laklevi
village, on the Agbozume - Denu road, the first defendant, driving a Bedford
threeton truck, ran head on into the owner’s tanker. The truck being driven by
the first defendant, with registration No. GS 2041, belonged to the Ministry
Agriculture, a fact which explains the presence of the Attorney-General as the
second defendant representing the Ghana Government. The first defendant was
travelling in the opposite direction from Aflao to Adidome, and the time was
about 7.30 p.m., with both vehicles having their headlights on.<o:p></o:p><o:p>&nbsp;</o:p>The
learned trial judge accepted the evidence that on sighting the Ministry of
Agriculture truck some distance away, the second plaintiff dipped his
headlights, and being somewhat apprehensive of the approaching vehicle, pulled
further into his own lane of traffic, right unto the verge of the road. For
extra caution the second plaintiff, at the same slowed down his speed
considerably. But the Ministry of Agriculture truck was observed still
wandering off its lane of traffic, and eventually struck at the front, then at
the rear offside of the tanker. The tanker reeled down on its near side into a
ditch, with the Ministry of Agriculture truck sitting on top of the tanker.<o:p></o:p><o:p>&nbsp;</o:p>The first
defendant admitted the fact of the collision having occurred in the lane of the
tanker, although he would describe the impact as a mere graze. Consequently,
his protestations that the second plaintiff put on full headlights on getting
nearer to him, and so blinded him to stray into the second plaintiff’s lane,
could not avail him in his plea of contributory negligence. The learned judge
held that the collision was attributable wholly to the negligent driving of the
first defendant and so he was answerable for the damages flowing therefrom.<o:p></o:p><o:p>&nbsp;</o:p>It is
unnecessary to set out the particulars of damages except to say that the trial
court found that the tanker No. GL 4146 was written off as a total loss. The
owner employed his tanker in conveying petroleum products from Tema to Denu
District, five days in the week. The evidence that this business earned the
owner a commission of between 2,500 cedis and 4,000 cedis monthly was accepted.
The original cost of the vehicle was 50,000 cedis in 1970, the replacement cost
was given by as him 240,000 cedis as at November 1980. Together with
miscellaneous damages the learned trial judge finally awarded the owner the sum
of 244,375 cedis damages made up as: (1) replacement value — 240,000 cedis (ii)
cost of removal — 875 cedis, and (iii) loss of earnings for the month of the accident
— 3,500 cedis.<o:p></o:p><o:p>&nbsp;</o:p>In this
appeal, learned counsel for the defendants, Miss Amassah, with leave of the
court, argued three additional grounds filed by her. The first was that the
learned judge erred in law in holding that the accident occurred solely as a
result of the negligence of the first defendant; and second alleges that
learned judge failed to consider the evidence before him on contributory
negligence. We have considered these grounds and only think it necessary to say
that we find no substance in them.<o:p></o:p>