KWADWO APPIAH vs KWABENA ANANE [2020]DLSC8597

Date	2020-01-22
Suit No.	CIVIL APPEAL SUIT NO. J4/42/2019
Citation No.	[2020]DLSC8597

YEBOAH CJ (PRESIDING)

BAFFOE-BONNIE JSC

APPAU JSC

PWAMANG JSC

AMEGATCHER JSC

CHARLES AGBANU WITH NANA BOSOMPEMAA ANTWI FOR THE PLAINTIFF/APPELLANT/RESPONDENT.

IBRAHIM ADAMS WITH CHARLES LESBAN FOR THE DEFENDANT/RESPONDENT/APPELLANT.

[2020]DLSC8597
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													<main id="main" class="content" style="min-height: 60rem" >KWADWO APPIAH<o:p></o:p>(PLAINTIFF/APPELLANT/RESPONDENT)<o:p></o:p>vs<o:p></o:p>KWABENA ANANE<o:p></o:p>(DEFENDANT/RESPONDENT/APPELLANT)<o:p></o:p><o:p>&nbsp;</o:p>[SUPREME COURT, ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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CIVIL APPEAL SUIT NO. J4/42/2019&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &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: 22ND JANUARY, 2020<o:p></o:p>

</div>COUNSEL:<o:p></o:p>CHARLES AGBANU WITH NANA
BOSOMPEMAA ANTWI FOR THE PLAINTIFF/APPELLANT/RESPONDENT.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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IBRAHIM ADAMS WITH CHARLES LESBAN FOR THE DEFENDANT/RESPONDENT/APPELLANT.
<o:p></o:p>

</div>CORAM: &nbsp;&nbsp;&nbsp;&nbsp;&nbsp; <o:p></o:p>YEBOAH CJ (PRESIDING), BAFFOE-BONNIE JSC, APPAU JSC, PWAMANG JSC,
AMEGATCHER JSC<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="text-align:center;border:none;
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</div>AMEGATCHER,
JSC:-<o:p></o:p>We have been called upon as judges of the apex
court of the land to have a second look on appeal at this personal injury case.
It started from the High Court, Kumasi; was reviewed and ruled upon on appeal by
the first intermediate appellate court sitting at Kumasi; and has again on
appeal been assigned to us for a final and conclusive resolution. The defendant
in the High Court suit who is now the appellant shall hereafter be referred to
in this opinion as defendant. The respondent, Kwadwo Appiah, who was plaintiff
in the High Court, will hereafter maintain his designation as the plaintiff.<o:p></o:p>The facts of this appeal have the temptation of arousing
the sympathy of any trier of fact. It is not surprising that one of the hard-hitting
areas of attack by counsel for the defendant against the learned and respected
judges of the Court of Appeal is that they were swayed by sentiments in
reaching a decision in this matter. However, those who ply their trade as
Barristers and Advocates as well as those of us who act as referees in the
competing claims presented to the court know or are deemed to know that a court
of law does not make decisions based on emotions, sympathy or sentiments. The time-tested
rule for sifting evidence and testing the credibility of the respective cases presented
by parties before the court and making a decision one way or the other is
evidence. It is against this background that this case was fought in the High
Court and Court of Appeal; and it is by the same yardstick that the case, now
on appeal before the apex court will be considered.<o:p></o:p>The events, giving rise to this case, started on 28th
April, 2009. The plaintiff, a timber merchant of 39 years at the time of the
incident acting through his friend and business partner called Sammy hired the
defendant’s truck numbered AS 5471-X to cart his timber logs from Diaso near
Dunkwa to Mim in the then Brong Ahafo Region. On reaching a place called Kwabena
Kumah, the vehicle was involved in an accident. The plaintiff, Sammy and the
driver of the vehicle sustained serious injuries and were sent to Goaso Government
Hospital. Because of the seriousness of the injuries suffered, the plaintiff
was later transferred to the Komfo Anokye Teaching Hospital in Kumasi for
further treatment where he received intensive care from 30th April,
2009 to 4th September, 2009 before being discharged to continue his
treatment as an outpatient. <o:p></o:p>The plaintiff on 20th June, 2012, after
seeking extension of time within which to file a writ sued the defendant, owner
of the vehicle for the sum of Gh¢400,000.00, special and general damages for
the negligence of defendant’s driver, servant and employee resulting in the
injuries suffered in the accident. According to the plaintiff, the vehicle was not
insured, did not have a road worthiness certificate and the driver was also not
licensed by law to drive the vehicle at the material time. <o:p></o:p>The defendant did not deny the fact that he owned
the vehicle and that the road worthiness certificate and insurance had both expired.
The defendant, however, denied the fact that the driver in control of the
vehicle at the material time was his driver or servant. According to the
defendant, one Kudjar Sumiala rented the timber truck for two days and gave him
his driver to assist him with the carting of the logs. However, the said Kudjar
Sumiala ended up using the truck for four days without his knowledge, consent
or approval. During the four-day period, defendant’s driver left the truck in
the care of the hirer after the two days to attend to an emergency call concerning
his mother’s illness at the Sunyani hospital. According to the respondent, it
was Kudjar Sumiala who failed to return the vehicle to him and rather asked a
driver called Kwame Paul to drive the vehicle and continue with the cutting of
the logs. The defendant, therefore, contended that the said Kwabena Paul was on
a frolic of his own when the accident occurred and, therefore, he cannot be
vicariously held liable for the tort of Kwabena Paul. The defendant also contended
that he had no contract with the plaintiff and that the plaintiff neither
rented the truck nor was he a paid passenger at the time of the accident and at
best could be described as someone on a frolic of his own. <o:p></o:p>After trial at the commercial division of the High
Court, Kumasi, the learned trial judge delivered his judgment on 30th
October, 2015. The trial court found that the accident was not caused by the
negligent driving of the servant of the defendant because the evidence of the police
was that the vehicle developed a fault and fell down. The judge, however, held
that by permitting a vehicle to ply the road without valid documentation i.e., road
worthiness certificate and insurance as well as authorising an unlicensed
driver to drive the truck, the defendant should be held vicariously liable for
t</main>