HENRIETTA BADU-ANUM vs. CLUFF MINING GHANA LTD. & GEOFREY CHRISTOPHER BADU-ANUM [2002]DLCA6488

Date	2002-05-30
Suit No.	CIVIL APPEAL No. 27/2000
Citation No.	[2002]DLCA6488

TWUMASI J.A

ARYEETEY J.A

GBADEGBE J.A

[2002]DLCA6488
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													<main id="main" class="content" style="min-height: 60rem" >HENRIETTA BADU-ANUM<o:p></o:p>(PLAINTIFF/RESPONDENT)<o:p></o:p>vs.<o:p></o:p>CLUFF MINING GHANA LTD.
&amp; GEOFREY CHRISTOPHER BADU-ANUM.<o:p></o:p>(DEFENDANTS/APPELLAN)<o:p></o:p>[COURT
OF APPEAL, ACCRA]<o:p></o:p>CIVIL
APPEAL No. 27/2000&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; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 30TH MAY, 2002<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<o:p></o:p>

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GBADEGBE J.A<o:p></o:p>

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mso-padding-between:1.0pt">JUDGMENT<o:p></o:p>

</div>TWUMASI, J.A. <o:p></o:p>This
is an appeal from the judgment of an Accra High Court, dated 12th May 1999. For
my convenience, I intend to retain the positions of the parties as they stood
at the trial Court. As their names clearly suggest, the plaintiff and the
second defendant were Mr, and Mrs. Badu-Anum, lawfully married. While the
honeymoon lasted, the couple naturally did all that one would expect from a
couple in those circumstances including, of course, the sharing in each other’s
sorrow and joy. During this period, the plaintiff lost a relative and the
second defendant had to accompany her and other relations to the funeral. As
any responsible husband would do, the second defendant provided as their means
of transport to and from the place of the funeral celebration, his Landrover
Jeep with registration No. ACR 6201. On their return from the town Mankessim,
where the funeral took place, an accident occurred at Ekumfi Dunkwa between the
Landrover and an articulated truck with registration number WRA 3233 which was
traveling from Accra, the opposite direction. The result of the impact was so
disastrous that any ordinary person could not help but comment that ill fate
had cruelly inflicted upon the couple a sequence of agony, because the
plaintiff sustained severe injuries while other passengers also had their share
of the injuries including one fatality. One of the passengers by the name Ablor
Adjei sustained serious injuries as the others, but he was the only unfortunate
one who succumbed to the injuries at the Cape Coast Central Hospital. <o:p></o:p>The
police investigated the accident and collected statements from some of the
plaintiff’s relations who survived the sad event and also from the 2nd
defendant. The plaintiff also made a police statement. On completion of their
investigations, the police arraigned the 2nd defendant before the District
Court, Saltpond on one charge of careless driving and six counts of negligently
causing harm, but he emerged victorious by his acquittal and discharge on all
the charges to each of which he pleaded Not Guilty. The police report indicated
that that was final, implying that the articulated truck driver was never
charged and the police had no intention of ever doing so. One curious thing
about the case was that there was no police sketch of the scene of the accident
to indicate such vital factors for determining fault as the point of impact and
other distances and resultant positions of the two vehicles in the course of
the impact. The police, however, prepared their final accident report, that
stereotype document with which insurance law practitioners are too familiar. As
the direct result of the accident, the plaintiff felt entitled to institute
legal proceedings for damages against the person she perceived to be the
tortfeasor and the axe fell on the 2nd defendant, her husband who was driving
the Land rover at the material time of the accident. By way of casual
observation made without prejudice, I should have thought that the better
option would have been an action against the two drivers and I take cue and
sustenance in my view from learned opinions of eminent jurists both overseas
and at our shores here in Ghana including Lord Denning, Chief Justice Apaloo of
blessed memory, Chief justice Samuel Azu-Crabbe and Justice Annan who happily
are around with us. <o:p></o:p>Annan
J (as he then was) stated in Tishigu and Another v Abdulai Dagomba &amp;
Others, High Court, Kumasi reported in (1967) GLR 309 that proof or evidence of
a collision per se on the highway between two vehicles traveling in opposition
directions could not without more raise an inference or presumption against
either or both drivers. Lord Denning of blessed memory stated in Baker v Market
Harborough Industrial Co-operation Society Ltd (1953) 1 WLR 1472 at 1476 thus:<o:p></o:p>&nbsp;“Every day proof of the collision is held to
be sufficient to call on the two defendants (drivers) for an answer. Never do
they both escape liability. One or other is held to blame and sometimes both.”<o:p></o:p>&nbsp;In the celebrated local case of Nyame v Tarzan
Transport (1973) 1 GLR 8 C.A., both Chief Justice Azu-Crabbe and Apaloo
expressed opinions in support of Lord Denning’s statement of the law. That view
was succinctly articulated by Azu-Crabbe (JSC as he then was) with Lassey and
Archer JJA (as they then were) in the case of Mensah v Gonja CA No 69/71 dated
31st July 1972 unreported and I quote:<o:p></o:p>&nbsp;“Collision between two vehicles on the highway
raises an inference of negligence against the drivers of vehicles involved in
the accident and the onus is then thrown on each driver to exculpate himself.
If evidence is led by the defence, the trial judge must decide that the
accident happened in a particular way. This principle has recently been
considered by this court in Nyame v Tarzan Transport and I adhere to everything
I said in that case”. <o:p></o:p>In
my view the opinion of Annan J (as he then was) in Tishigu v Dagomba (supra) is
not inconsistent with the opinion of their Lordships as expressed in Nyame v
Tarzan Transport (supra) and that of Lord Denning in Baker’s case (supra). A
useful lesson for practitioners is that there can be no hard and fast principle
or practice directive that where there is a collision between two vehicles the
injured person must as of necessity sue the drivers of the vehicles. Where the
injured person is unsure of the guilty driver because he does not possess
either watertight evidence or otherwise, it would be counsel of prudence to sue
the two drivers. It follows that he should not hesitate to sue one of the
drivers against whom there is overwhelming evidence of negligence resulting in
the collision. But having said this, the advantages of suing both drivers must
be obvious to practitioners. I now proceed to look very closely at the strength
of the case made by the plaintiff against the defendants. The plaintiff in
paragraph (1) of her statement of claim accused the second defendant of driving
at top speed and thereby causing the accident while he was overtaking a leading
taxi cab. If this was true, then the second defendant would be adjudged guilty
because the rules in our Highway Code 1973 provide in regulation 72 thereof
that: <o:p></o:p>“72
Do not overtake:<o:p></o:p>&nbsp;- When to do so Would force another <o:p></main>