JOHN ZIENA AND ERNEST DABANKA vs. NASONA OIL CO. LTD. [2015]DLHC8507

Date	2015-07-25
Suit No.	SUIT NO. C8/53/10
Citation No.	[2015]DLHC8507

HIS LORDSHIP JUSTICE JACOB B. BOON

ASIEDU BASOA FOR THE PLAINTIFFS

JOHN BREFO FOR THE DEFENDANT

[2015]DLHC8507
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													<main id="main" class="content" style="min-height: 60rem" >JOHN ZIENA AND
ERNEST DABANKA<o:p></o:p>(PLAINTIFFS)<o:p></o:p>vs.<o:p></o:p>NASONA OIL CO.
LTD.<o:p></o:p>(DEFENDANT)<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;
padding:0cm 0cm 1.0pt 0cm">

SUIT
NO. C8/53/10&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: 25TH JULY, 2015<o:p></o:p>

</div>COUNSEL:<o:p></o:p>ASIEDU
BASOA FOR THE PLAINTIFFS<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0cm 0cm 1.0pt 0cm">

JOHN
BREFO 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;
padding: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;
padding:0cm 0cm 1.0pt 0cm">

<p class="MsoNormal" align="center" style="margin-bottom:0cm;margin-bottom:.0001pt;
text-align:center;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0cm;mso-padding-alt:0cm 0cm 1.0pt 0cm">JUDGMENT<o:p></o:p>

</div>According
to their statement of claim, both plaintiffs herein described themselves as
businessmen as well as transport operators. &nbsp;On 7th December, 2009, they issued
this writ originally against three defendants. However, they discontinued it
against the second defendants, whilst the third passed away, but was not
substituted. They claimed damages for wrongful damages caused to two vehicles
belonging to them. First Plaintiffs vehicle is a VW Jetta Saloon car, Number AS
1502 N, whilst the second Plaintiff owned a Chrysler Saloon car with
registration number GE 495 X. Both vehicles got damaged beyond repairs in an
accident on 1/09/08 involving a Daimler Benz Fuel tanker No. AS 7401-F which
was then loaded with 14,000 gallons of petrol, driven by one Moro Abdulramani
and was moving from Asokwa towards the Kumasi Sports Stadium. According to the
unchallenged testimony of the first Plaintiff, on behalf of himself and the
other plaintiff, they parked their saloon cars by the road side and as they
walked away they saw the fuel tanker approaching the stadium on a top speed;
that on reaching a spot near Spirit FM junction, the driver lost control of the
vehicle. Consequently one of the front tyres entered a gutter and that ……………a
fire as the petrol leaked. He said because of the continuous leaking of the
petrol into the gutter, the fire extended to the spot where they parked their
cars. Their vehicles also caught fire and were burnt beyond repairs. He
tendered two exhibits as ‘F’ and ‘G’ which are reports prepared by Inter City
STC Coaches and it was confirmed in them that both vehicles were burnt beyond
repairs. According to him the accident occurred because the tanker was being
driven at top speed at the time and in order to avoid running into a vehicle
that had stopped ahead of it at a junction, the driver swerved the fuel tanker
to his right but unfortunately it landed in the gutter and caught fire. The
fuel escaped and spread with the fire to the spot where he and the plaintiff
parked their vehicles and burnt them to ashes. Their case is therefore
basically an assertion of negligence on the part of the tanker driver whom they
claimed was a servant of the first defendant company which owned the tanker
driver. It is for this reason that they sued the company praying for general
damages for the total loss of their vehicles, and also for the cost incurred by
them when they had to hire other vehicles for their daily business, social and
/ or domestic undertakings from the time of the accident till date of judgment.<o:p></o:p><o:p>&nbsp;</o:p>In
its amended statement of defence filed on its behalf by Litigation Unit of
State Insurance Company Limited, dated 15th July, 2010, the
defendant merely denied the assertion of the Plaintiffs. It did not give any
further explanation of its side of the story to assist the Court in its
determination of the suit. What was more worrying on its part was that it did
not bother about the existence of the suit against it. Hence both its former
lawyer, Victor Walenkaki of SIC Litigation Unit, and current one, John Brefo were
consistently about anytime the case was called. Indeed, Mr. Walenkaki did not
make a single appearance in Court besides filing the statement of defence after
he entered appearance for it. The statement of defence so filed, I daresay did
not adequately explain any defence; it merely denied the allegation made
against his client. That clearly placed the burden on the Plaintiffs to
establish their case on the preponderance of the probabilities as required of
them by law. That is an elementary principle that does not need the citation of
authorities in support.<o:p></o:p>But
that was not all. The defendant sent no representative to the Court when it was
first called on 9th June, 2011 till the 29th June 2015,
that a little over four years when the case was called. And this was after the
Plaintiffs were granted leave to start their case in the absence of the
defendant. On that day a representative of the company one A.O.B. Gambrah and
their counsel was in Court after they had filed a motion on notice to re</main>