ADOM vs. NTOW [1992]DLCA5034

Date	1992-04-13
Suit No.	[1992 – 1993] 4 G B R 1594 - 1602 C.A
Citation No.	[1992]DLCA5034

AMUAH JA

OFORI-BOATENG JA

FORSTER JA

ATUA FOR THE APPELLANT.

ADDINGTON FOR THE RESPONDENT.

[1992]DLCA5034
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													<main id="main" class="content" style="min-height: 60rem" >ADOM<o:p></o:p>vs.<o:p></o:p>NTOW<o:p></o:p>[COURT
OF APPEAL]<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">

[1992 – 1993] 4 G B R 1594 -&nbsp; 1602 C.A&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 13 APRIL 1992<o:p></o:p>

ADDINGTON
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 1.0pt 0in">

</div>FORSTER JA. <o:p></o:p>The
plaintiff-respondent Kwaku Ntow (hereinafter called the plaintiff) was at the
material time in 1981 self-employed in the “tie-and-dye” business and lived in
Kumasi. The defendant-appellant, Kwame Adom (hereinafter called the defendant),
lived in Kumasi and owned a 78-seater Neoplan bus No GT 9810. The vehicle was
driven by Joseph Boateng, who at the trial gave evidence as DW1. On 17 October
1981 the plaintiff boarded the defendant’s said bus at Accra. He was bound for
Kumasi and had with him as his luggage some chemicals which he had purchased in
Accra for his “tie-and-dye” business. DW1 was the driver of the vehicle. At
about 4.30 pm they reached a point between Odumase and Potroase on the
Accra-Kumasi highway. A broken-down Mercedes Benz articulated truck No GK 4206
was in the lane of the Neoplan bus. It was in a curve and facing Kumasi
direction. The driver of the bus drove on and attempted to pass the stationary
vehicle. Just then, he sighted an approaching Leyland truck. The bus hit the
truck, glazing the body. He then swerved and rammed into the stationary truck.<o:p></o:p>From
the police accident report it is evident that the damage to the stationary
vehicle was confined to the rear. The trailer tail board was buckled. The
offside trailer lighting unit was smashed and the offside near break shoes
buckled. The Neoplan Bus was damaged beyond repair. Five passengers on the bus
died and eighteen others sustained injuries. The plaintiff’s left leg was
smashed below the knee. This was subsequently amputated.<o:p></o:p>On
11 December 1982, DW1, the driver of the Neoplan bus pleaded guilty to careless
driving and 22 counts of negligently causing harm at the Magistrate’s Court, at
Kibi. He was sentenced to a fine of ¢100,000 or five months imprisonment. He
paid the fine.<o:p></o:p>On
1 June 1983 the plaintiff commenced action against the defendant at the High
Court, Kumasi, claiming damages for injury, pain and suffering and ¢25,000
being the cost of plaintiff’s dye chemicals then being carried on the
defendant’s bus, and which was destroyed. The High Court gave judgment in
favour of the plaintiff. It is from that judgment that the defendant now
appeals to this court. At the court below the issues joined between the parties
were:<o:p></o:p>(i)
whether or not driver Joseph Boateng negligently drove vehicle No GT 9810 at
the time the accident occurred?<o:p></o:p>(ii)
whether the plaintiff suffered injuries?<o:p></o:p>(iii)
whether the plaintiff is entitled to the reliefs claimed.<o:p></o:p>An
additional issue arising from the pleadings was whether the driver pleaded
guilty with the knowledge and consent of the defendant. The defendant’s grounds
of appeal before this court were:<o:p></o:p>1.
That the trial judge erred in law when he failed to consider the issue as to
whether or not the other two drivers were responsible for the accident or they
contributed to it.<o:p></o:p>2.
That the judge erred in law by relying strongly on the police accident sketch,
exhibit C.<o:p></o:p>3.
That the judge erred in law in finding for the plaintiff even though some
material witnesses such as the testing officer, the person who was alleged to
have signalled the bus to stop and some of the passengers who saw the accident
were not called.<o:p></o:p>4.
The trial judge erred in law by allowing his mind to be influenced by the wrong
impression that the defendant’s bus was overtaking the articulated truck when
the accident occurred.<o:p></o:p>5.
The trial judge erred in law when he failed to make a finding as to whether or
not DW1 was acting within the scope of his employment or the plaintiff was a
trespasser when he allegedly entered the bus for the journey.<o:p></o:p>The
plaintiff also cross-appealed, contending that the quantum of damages awarded
by the judge was inadequate in law. Mr Atua, counsel for the defendant, argued
the grounds together. His submissions were mainly directed at the issue whether
the defendant’s driver was negligent and if so whether his negligence could be
imputed to the defendant to make him liable.<o:p></o:p>The
trial judge found, and rightly in my view, that the accident was caused solely
by the negligence of DW1, and to the exclusion of the drivers of the stationary
articulated truck and the Leyland cargo truck, respectively. The trial judge
addressed the issues in his judgment. The burden of proof was, as stated by the
judge, on the plaintiff to prove his case by evidence from which it could be
inferred that the negligence of the defendant led to the accident. This he
stated should be established on a balance of probabilities. Having reviewed the
evidence the trial judge concluded:<o:p></o:p>“The main and only cause of the
accident was due to the negligent driving of the driver Boateng, DW1, in this
case.”<o:p></o:p>It
is this finding that counsel contended was not borne out by the evidence. I am
mindful of the appellate court’s duty and responses to invitations by
appellants to re-evaluate and review the trial court’s findings. An appellate
tribunal may so review and subst</main>