DUAKO AND ANOTHER vs. ADAMPA [1993]DLHC5041

Date	1993-03-04
Suit No.	[1992 – 1993] 4 G B R 1553 - 1558 C.A
Citation No.	[1993]DLHC5041

KPEGAH JSC

LAMPTEY JA

ADJABENG JA

ADJEI MENSAH FOR THE APPELLANTS.

PEPRAH (WITH HIM GYAMERA) FOR THE RESPONDENT.

[1993]DLHC5041
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													<main id="main" class="content" style="min-height: 60rem" >DUAKO AND ANOTHER<o:p></o:p>vs.<o:p></o:p>ADAMPA<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 1553 - 1558
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; &nbsp;DATE: 4 MARCH 1993<o:p></o:p>

PEPRAH
(WITH HIM GYAMERA) 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">

KPEGAH
JSC, LAMPTEY JA, ADJABENG JA<o:p></o:p>

</div>LAMPTEY JA. <o:p></o:p>About
7.00 pm on 25 May 1987 one Kofi Adampa was driving a farm tractor loaded with
sawn timber from Twemia Nkwanta towards Techiman when it broke down. He parked
the tractor and left the scene to travel to Techiman to buy diesel fuel. He
left behind one Yaw Fosu to look after both the tractor and the sawn Timber.
Since it was getting dark Yaw Fosu was to use a flash light to assist and warn
drivers of other vehicles using the highway to exercise due care and attention.
In due course a taxi-cab driven by one Nelson Duako travelling from Techiman
towards Sunyani crashed into the stationary tractor and caused extensive damage
it. The taxicab was also damaged. The owner of the tractor, Kofi Adampa, took action
in negligence against Nelson Duako and his insurer. He claimed two reliefs,
namely:<o:p></o:p>“(1) ¢1,300,000 being the total cost
of repairs of the tractor, and (2) loss of use at ¢6,000 per diem for a period
of four months.”<o:p></o:p>At
the end of the trial judgment was entered for Kofi Adampa in the sum of
¢2,067,977 for loss of use for a period of ten days. Duako and his insurer were
aggrieved with the judgment and appealed to this court.<o:p></o:p>The
first ground of appeal argued by learned counsel for the appellant was that the
judgment was against the weight of evidence. He submitted that the trial judge
erred in holding that the evidence adduced by the respondent and his witnesses
proved and established negligent driving on the part of the 1st appellant,
Nelson Duako. He pointed to pieces of evidence on record, which he argued
showed that the unfortunate accident was wholly caused by driver Kofi Adampa.
In reply, learned counsel for the respondent submitted that the accident was
caused by the negligence of Nelson Duako, the 1st appellant. According to him,
the trial judge was right when he held that Nelson Duako, the 1st appellant,
drove his taxi without keeping a proper look out for obstructions on the road.
He invited this court not to disturb the findings of fact made by the trial
judge.<o:p></o:p>It
is trite learning that this court must not disturb findings of fact made by the
trial court, except where it can be shown that the trial court applied wrong
principles of law or that the findings of fact cannot be supported by the evidence
on record. The decided cases are so well known that no useful purpose would be
served by listing them here.<o:p></o:p>In
arguing ground one, learned counsel for the appellants referred to and relied
on the sketch of the scene of the accident, which was admitted in evidence.
This sketch, among other matters, showed the resultant position of the tractor
with the sawn timber on it. It showed the brake marks left on the road by the
taxicab driven by Nelson Duako, the 1st appellant. It also showed the distance
between the taxicab and the parked tractor when the 1st appellant first saw the
parked tractor. On the face of the sketch, the 1st appellant gave to the
policeman information which showed that when he first saw the parked tractor he
was about 15 to 20 yards away from it; that is to say, about 45 to 60 feet from
the parked tractor.<o:p></o:p>On
a careful examination of the sketch, it will be seen that the 1st appellant
applied his brakes when the taxicab was 248 feet away from the parked tractor.
The brake marks painted a true picture of the pre-accident position on the
issue as to when the 1st appellant first saw the parked tractor. Indeed it was
undisputed that when the 1st appellant first saw the parked tractor and became
apprehensive of danger, he was at the very least 248 feet away from the
stationary tractor. It is therefore not true for the 1st appellant to tell the
policeman that when he first saw the tractor, he was 45 feet to 60 feet away
from it. The fact that the appellant was not able to bring his taxicab to a complete
stop within the distance of 248 feet no doubt should give an indication of the
speed at which he drove his taxicab.<o:p></o:p>In
the court below, the 1st appellant said he was driving at a speed of 50 miles
per hour. He failed to explain why he could not stop his vehicle within a
distance of 248 feet. The reasonable inference to draw was that either the 1st
appellant’s vehicle had defective brakes or he drove at a speed far in excess
of that which the prevailing circumstances and conditions allowed. The submission
of learned counsel for the appellant that the evidence in the sketch showed
that appellant did not drive negligently is not supported.<o:p></o:p>I
now turn to the evidence on record, which dealt with the pre-accident situation
and condition at the scene of the collision. There was unchallenged evidence
that there was a curve or bend not very far from the area of the collision.
Again, there was evidence that the 1st appellant was descending a gentle slope
or hill. According to the 1st appellant, the time of the collision was between
9.30 pm and 10.00 pm. The respondent gave the time as between 8.30 pm and 9.00
pm. The above evidence goes to show that at the time of the collision it was
either dark or getting dark. The conclusion is supported by the evidence of PW1
that he used a flashlight to warn the 1st appellant as he drove past him. In
the light of all the prevailing circumstances and conditions above and bearing
in mind that when the 1st appellant first applied his brakes, he was 248 feet
away form the parked tractor, the finding by the trial judge that 1st appellant
drove negligently cannot be faulted.<o:p></o:p>The
other complaint made by learned counsel for the 1st appellant was that the
parked tractor blocked the busy Techiman to Sunyani highway hence the collision
was inevitable. This was what the 1st appellant told the court under
cross-examination:<o:p></o:p>“Q&nbsp;&nbsp;&nbsp;&nbsp;
Before the accident the road had not been blocked because there was free
passage of vehicles.<o:p></o:p>A&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
That is not correct. The road had been blocked. My car was the first to
get to the scene”.<o:p></o:p></main>