KWESI ISAAC vs. TULUWE-WURA RASHEED SULEMANA MAHAMA DEFENDANTS AND MARK MAY HINNE [2017]DLHC3962

KWESI ISAAC vs. TULUWE-WURA RASHEED SULEMANA MAHAMA DEFENDANTS AND MARK MAY HINN... [2017]DLHC3962

Date	2017-01-12
Suit No.	SUIT NO: BMISC1196/2015
Citation No.	[2017]DLHC3962

JUSTICE KWEKU T. ACKAAH-BOAFO

MR. MOHAMMED AWAL ALHASSAN FOR THE PLAINTIFF

MR. WALENKAKI FOR THE DEFENDANTS

[2017]DLHC3962
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >KWESI ISAAC<o:p></o:p>vs.<o:p></o:p>TULUWE-WURA RASHEED
SULEMANA MAHAMA DEFENDANTS AND MARK MAY HINNE<o:p></o:p>[HIGH
COURT (GENERAL JURISDICTION DIVISION, COURT 6) ACCRA.]<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">

SUIT NO: BMISC1196/2015&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 12TH JANUARY, 2017.<o:p></o:p>

MR.
WALENKAKI FOR THE DEFENDANTS <o:p></o:p>

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

</div>Introduction: <o:p></o:p>[1] This action arises
out of a vehicle accident that occurred on June 26, 2014, in which the
Plaintiff, Kwasi Isaac, a farmer with six children, was injured. The accident
occurred when the Plaintiff was crossing the road as a pedestrian at Ogome, a
suburb of Somanya. The vehicle was being driven by 2nd Defendant, Mark Hinne, and
owned by the 1st Defendant Tuluwe-Wura <o:p></o:p>Rasheed
Sulemama Mahama. The Plaintiff was injured and was rushed to the Volta River
Hospital at Akosombo. The 2nd Defendant was charged by the Police and he later
pleaded guilty to the charges.&nbsp; <o:p></o:p>&nbsp;[2] On the 22nd day of
September 2015, the Plaintiff caused the writ of summons accompanied by a
statement of claim to issue against the Defendants for the following relief: <o:p></o:p>&nbsp;General Damages and Special Damages for
negligently causing him a life threatening injuries. <o:p></o:p>[3] The Defendants
duly entered appearance and filed a statement of defence on October 27, 2015.
The Defendants and Counsel thereafter failed to attend court despite numerous
hearing notices served at the direction of the Court. Even though the
Defendants evinced every intention not to contest the Plaintiff’s claim by
failing to comply with the Court orders to file witness statement and
documents, they were notified at every stage of the proceedings. The trial
proceeded pursuant to the provisions of Order 36 of the High Court (Civil Procedure) Rules, CI 47 particularly rule (1) and
(2) despite the absence of the Defendant. <o:p></o:p>[4] I note that the
reason why the Court bothered to serve the Defendants with hearing notices even
though they failed to comply with the orders and attend Court was that, on the
authorities, where a Court has taken a decision without due regard to a party who
was absent at trial because he was unaware of the hearing date, that decision
is a nullity for lack of jurisdiction on the part of the Court. See: Barclays Bank v. Ghana Cable Co [2002-2003]
SCGLR 1 and the earlier case of Vasque
v. Quarshie [1968] GLR 62. <o:p></o:p>[5] On the other hand,
the law is that where the party is sufficiently made aware of the hearing date
and/or offered the opportunity to appear in court to answer/defend or as in the
present case where the Defendants were duly served but they failed/refused to
attend Court, the Court is entitled to proceed to determine the case on the
basis of the evidence adduced at the trial, notwithstanding the absence of the
party, in this case the Defendants. See Order 36 of the High Court Civil
Procedure Rules, (2004, CI 47) and also In Re: West Coast Dying Ind. Ltd; Adams
v Tandoh [1987-88] 2 GLR 561. <o:p></o:p>Plaintiff’s
Claim [6] The case of the Plaintiff is that on June 26, 2014 in the town of
Somanya and at a suburb of Ogome whilst crossing the road as a pedestrian, he
was struck by Toyota Land Cruiser with registration number GE 1129-14 owned by
the 1st Defendant and at all material times being driven and under the control
of 2nd Defendant. The Plaintiff claims that the 2nd Defendant was negligent
because he drove recklessly and at a high speed without regard to other road
users like himself in the township. The Plaintiff was injured and was evacuated
to the Volta River Hospital at Akosombo and was later referred to the St.
Joseph Hospital at Koforidua where his injuries were further treated.&nbsp;&nbsp; <o:p></o:p>[7] It is also the
Plaintiff’s case that he is still receiving treatment as an out-patient.
Following the incident, the Police conducted investigations and the 2nd
Defendant was charged and arraigned before the Somanya District Court. He
pleaded guilty to the charges of Careless and Inconsiderate driving and
Negligently Causing Harm. He was convicted on his own plea and was fined by the
Court. The fine was duly paid. Having expended money on medical treatment
consequent to the accident, the Plaintiff through his attorneys caused the
instant writ of summons to be issued against the Defendants.&nbsp; <o:p></o:p>&nbsp;<o:p></o:p>The
Defendants’ Pleadings/Defence [8] The Defendants in the defence filed admitted
that the 2nd Defendant was the operator of the said motor vehicle on the day of
the incident but blamed the Plaintiff for crossing the road at an unauthorized
area and therefore accused the Plaintiff of contributory negligence to the
extent that an accident occurred resulting in the Plaintiff’s injuries. The Defendants
denied the charge of negligence made by the Plaintiff against them and pleaded
that the Plaintiff is not entitled to his claim.&nbsp; <o:p></o:p>[9] Pleadings closed
and directions were given in the matter on December 11, 2015. After directions
were taken, the matter was adjourned to January 18, 2016. The parties were then
or</main>