MARTIN OKYERE DARKWA vs. ANTHONY KWAME NTIAMOAH [2013]DLHC8192

Date	2013-05-02
Suit No.	SUIT NO. C8/84/08
Citation No.	[2013]DLHC8192

HIS LORDSHIP JUSTICE JACOB B. BOON

F.C. KHARSA FOR THE PLAINTIFF

NO REPRESENTATION FOR THE DEFENDANT.

[2013]DLHC8192
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													<main id="main" class="content" style="min-height: 60rem" >MARTIN OKYERE
DARKWA<o:p></o:p>vs.<o:p></o:p>ANTHONY KWAME NTIAMOAH<o:p></o:p>[HIGH COURT, KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO. C8/84/08&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; &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:
2ND MAY, 2013<o:p></o:p>

</div>COUNSEL:<o:p></o:p>F.C.
KHARSA FOR THE PLAINTIFF<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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NO
REPRESENTATION 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;
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<p class="MsoNormal" style="margin-bottom:0cm;margin-bottom:.0001pt;text-indent:
0cm;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">HIS
LORDSHIP JUSTICE JACOB B. BOON<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>The plaintiff herein, a self-employed heavy duty
mechanic who asserted he earned between GH¢500.00 and GH¢600.00 monthly, filed this
writ on 8/4/08 claiming general and special damages for injuries he sustained
when he was knocked down by defendant’s vehicle driven by a servant of the
defendant. He asserted that the accident occurred on 29th May, 2006
around three o’clock in the afternoon when he was crossing the Accra-Nsawam
road infront of Tesano Police Station &nbsp;in
Accra. He said he was rushed to Achimota Hospital and later transferred to the
37 Military Hospital where he was admitted for ten days. According to him, he
was rushed unconscious to the hospital, and when he regained consciousness he
realized the clavicle of his left shoulder was fractured; he had a head injury
and said as at now he suffers headaches from time to time. He led evidence that
as a result of the accident and because of the injuries he sustained he could
not work for about ten months; that his left hand is rendered useless as he
cannot lift it. According to him, he was &nbsp;regular at discotheques where he danced as a
past time. He said he is unable to dance now because of the injury. He tendered
in evidence a medical report issued by the 37 Military Hospital (exhibit ‘B’).
It is dated 13th October, 2006. The report indicated he has scars on
his head and arms, and complains of memory lapses and headaches. It assessed
his disability and deformity at thirty percent (30%) and twenty percent (20%)
respectively. He also tendered the Police report on the accident as exhibit
‘A’. Exhibit ‘A’ showed that the driver of the accident vehicle, one Philip
Kweinor Teye was arraigned before Matse Agbona District Court at James Town on
charges of careless and inconsiderate driving and negligently causing. He
pleaded guilty to both charges and was convicted and fined.<o:p></o:p><o:p>&nbsp;</o:p>It ought to be placed on record that the defendant
was served by substitution but he failed to enter appearance. He did not also
file a defence to the action. As substituted service is good service, it is
presumed the defendant had notice of the suit against him but chose not to
defend it.<o:p></o:p><o:p>&nbsp;</o:p>Be that as it way, as exhibit ‘A’ indicated that
the driver of the accident vehicle was successfully prosecuted in court, it
raises a presumption of negligence on his part. The law is that his conviction
operated as prima facie evidence of negligence against him and shifted the
burden on him. He could only succeed if he led credible evidence in rebuttal:
see sections 127 (1) of the Evidence Act, 1975 (NRCD 323) and the case of Adom
v. Ntow (1992) GBR 1603, headnote (5) at 1605 as follows:<o:p></o:p><o:p>&nbsp;</o:p>“The
trial judge rightly admitted the driver’s plea of guilty to the criminal
charges. The common law rule that excluded the admission of evidence on a
criminal conviction in a later civil action was abolished under section 127 of
the Evidence Decree 1975 (NRCD&nbsp; 323). The
conviction operated as prima facie evidence in favour of the plaintiff and shifted
the evidentiary burden on the defendant to rebut the prima facie presumption”.<o:p></o:p><o:p>&nbsp;</o:p>The driver is not a party to this action. However,
plaintiff’s case is that he drove the vehicle as servant of the defendant at
the time of the accident. As he was within the scope of his employment, the
defendant must be held liable for the wrongful act of his employee for as was
held in Stavely Iron Co. Ltd. v Jones (1956) AC 627: <o:p></o:p>