LAWRENCE L. MENSAH, J.A.:

This is an appeal which comes from the Defendants/Appellants hereinafter referred to as the Defendants against the judgment of the High Court Cape Coast dated the 16^th day of June 2017 in favour of the Plaintiff/Respondent who will be referred hereafter as the Plaintiffs.

Facts:

The appeal is about a running down action the facts of which are as follows:- The Plaintiff private road transport company owned Mercedes Benz Sprinter bus with Registration Number GS 3934 – 12 which was a commercial vehicle plying between Mankesim in the Central Region and Obuasi.

Plaintiff’s case:

On the 20^th day of November, 2013 at about 7.00 pm while the Plaintiff’s vehicle was on its journey from Obuasi to Mankessim, the 2^nd Defendant then, in charge of a DAF articulated truck with Registration Number GR 132 N loaded with 600 bags of dried cocoa beans, was travelling from New Edubiase with two passengers on board to Tema. On reaching a spot at Assin Asamankese on the Kumasi-Yamoransah road, the 2^nd Defendant driver overtook the Plaintiff’s Mercedes Benz vehicle which was in front of the DAF Truck. In course of overtaking the Plaintiff’s vehicle, the 2^nd Defendant saw another articulator truck coming from the opposite direction. Sensing danger, the 2^nd Defendant swerved to avoid a head-on collision with the on-coming articulated truck, and in the  process, hit the Plaintiff’s vehicle. The impact caused the Plaintiff’s Mercedes Benz bus to hit a Mitsubishi L 200 Pick-Up vehicle with Registration No. GR 1839 – 13 driven by one Ofosu Asare and a Nissan Urvan Bus with Registration Number GT 9986 – Z driven by one Samuel Takyi whose two vehicles were moving from the opposite direction.

It is the claim of the Plaintiff that all the vehicles including his Mercedes Benz Sprinter bus were extensively damaged as a result of negligent and careless driving of the 2^nd Defendant. According to the Plaintiff, as a result of the accident, it was denied its source of income from the use of the vehicle from November, 2013 to 30^th March 2014. The daily sales of the vehicle was GH¢200.00 which was six days in a week within which the damaged bus was repaired bringing the total loss of income to GH¢22,200.00.

Finally Plaintiff said the 2^nd Defendant was arraigned at the District Court, Assin Foso on the charge of careless and inconsiderate driving. Having pleaded guilty to the charges, the 2^nd Defendant was convicted and sentenced 80 penalty units or in default 6 months IHL.

Defendant’s case:

In their defence, the Defendants stiffly resisted the claim of the Plaintiff and counterclaimed for inter alia a declaration that it was rather the Plaintiff’s driver’s negligent driving which resulted in the accident and general damages for negligence.

The side of Defendant’s case is that it was rather the Plaintiff’s bus driven by one Yaw Asare which overtook the 1^st Defendant’s DAF truck. In the process of overtaking the DAF Truck, another articulator truck emerged from the opposite direction. This forced the 2^nd Plaintiff to manouvre his vehicle in front of the 1^st Defendant’s DAF Truck. The Defendants said this forced the Plaintiff’s bus to stop suddenly. In a bid by 2^nd Defendant to avoid hitting the rear portion of the Plaintiff’s bus, he drove off the road. It was the articulator truck which emerged from the opposite direction which “made contact with the Plaintiff’s bus, and this resulted in the accident”.

2^nd Defendant said after the accident he was placed in police custody and he was advised by the police to plead guilty. That was the time he had no access to a lawyer or his vehicle owner the 1^st Defendant.

After examination of the evidence of each of the parties at the court below, the learned trial Judge found for the Plaintiff, whereupon the Defendants appealed to this Court.

Counsel further contended that the Plaintiff ought to have “shown or exhibited the photograph of their car so mangled”. And that even though counsel for Appellant challenged Plaintiff to produce a photograph of their vehicle, it failed to do so.

 Counsel lamented that “the introduction of a further witness by the Plaintiff/Respondent such as a passenger on their vehicle, or the police who visited the accident scene and as conversant with the facts of the accident, would have resolved these issues”.

 Counsel also expressed his misgivings about the “over reliance of the trial judge on the police report on the accident and the plea of guilty by the 2^nd Defendant to a charge of negligence”. The Defendants said they therefore reject the over reliance of these pieces of evidence from the criminal court because as a civil trial, the learned trial judge should have given very little weight to the criminal trial in which 2^nd Defendant pleaded guilty.  Counsel referred to the case of Yamusa v. Mahama (1991) 1 GLR 549. Counsel said the 2^nd Defendant did not have the benefit of being represented by a lawyer at the trial when he was arraigned before the District Magistrate, Assin Fosu hence his pleading guilty.

Plaintiffs Submission Against Defendants’ Arguments:

In his submission against the Defendants’ argument as isolated above, the learned Plaintiff’s counsel argued that the law is settled that when an Appellant alleges that judgment is against the weight of evidence, the burden is cast upon the Appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment appealed against. Counsel refers to the case of Djin v. Musa Baako (2007-2008) SCGLR 686 in support.

Counsel also submitted that the appellate court must not disturb the findings of facts made by a trial court unless the judgment was not wholly supported by the evidence on record or same was perverse or the trial court took into account irrelevant materials when evaluating the evidence.

Counsel referred to In re Okine (Decd.); Dodoo & Another v. Okine & Others (2003-2004) 1 SCGLR 582 at 607 and Amoah v. Lokko & Alfred Quartey & Others (2011) 1 SCGLR 505. The relevance or otherwise of these cases to this appeal would be considered later in this judgment. Suffice it to say here that the learned counsel has stated the correct position of the law that since the Defendants have stated in their grounds of appeal that the judgment is against the weight of evidence, the onus rests on the Defendants to point out the lapses in the judgment. At the same time a duty is cast on the appellate court as held in the case of Tuakwa v. Bosom (2001-2002) SCGLR 61 at 65 per Sophia Akuffo, JSC (as she then was) that “In such a case although it is not the function of the appellate court to evaluate the veracity or otherwise of any witness, it is incumbent upon an appellate court to, in a civil case, analyse the entire record of appeal, taking into account all the testimonies and documentary evidence adduced at the trial before it arrives at its decision, so as to satisfy itself that, on the preponderance of the probabilities, the conclusions of the trial judge are reasonably and amply supported by the evidence”.

In further answer to paragraph 13 the 2^nd Defendant says that he was in police custody and was not granted bail until he was arraigned before court and was advised that if he pleads guilty he would only have to pay a fine in order to have his freedom (our emphasis).

In sharp contrast to paragraph 13 of the statement of defence captured above, 2^nd Defendant in paragraph 12 of his witness statement found at page 38 of the record of appeal has this to say:

I and the Sprinter driver (2^nd Plaintiff) were locked up till the following day when our statements were obtained and were granted Police Enquiry Bail. (our emphasis).

And in paragraph 15 of the same witness statement the 2^nd Defendant confessed that “In court I pleaded guilty because I was also compelled by the reckless driving of Plaintiff’s driver to overtake the car ahead of me when confronted with pot holes”.

Finally at page 70 of the record of appeal, the 2^nd Defendant who had the propensity to change his story about the cause of the accident, and why he was convicted by the District Court, Assin Fosu has this to say under cross-examination by Plaintiff’s counsel:

Q. At the court you were charged with carless and inconsiderate driving for which you pleaded  guilty.

A. Yes, When the accident occurred I went to the police station.  I was locked up from Friday to Monday. I had no phone to call the 1^st Defendant and my family members. This is why I pleaded guilty to the charge. (our emphasis).

Q. Before the District Court, Assin Fosu where you were arraigned you never gave this explanation.

A. That is true.

Q. I put it to you that this explanation you have given to this court for pleading guilty is an afterthought.

A. It is not an afterthought. As I said because I could not reach the 1^st Defendant and my family that is why I pleaded guilty to the charge.

The frequent changes of the 2^nd Defendant’s reason why the accident occurred and why he pleaded guilty would lead a trial court to find against the Defendants. How can the same 2^nd Defendant say in one breath that he and 2^nd Plaintiff were admitted to police enquiry bail the following day after the accident. And at the same time say under cross-examination that he was in custody from Friday to Monday and had no phone to call his family members, hence he pleaded guilty to the offence at the District Court.

Under the same cross-examination minutes later, the 2^nd Defendant said he could not contact the 1^st Defendant vehicle owner and his family hence his pleading guilty to the offence. This evidence of the 2^nd Defendant was contradicted by his own vehicle owner the 1^st Defendant that 2^nd Defendant was admitted to police enquiry bail the following day that is 21^st November 2013. It was however on 20^th day of October 2014 that the 2^nd Defendant was arraigned before court where he pleaded guilty for being the cause of the accident. That was exactly eleven months after the accident. What this means is that nothing or no-one operated on the mind of the 2^nd Defendant before he pleaded guilty, but it was a voluntary act of his which he was desperately trying to deny in the civil case.

Since there is a massive conflict and inconsistencies in the evidence of the 2^nd Defendant as to the cause of the accident which he craftly engineered to mislead the court, the learned trial Judge was right to find against the Defendants. As the trial Judge rightly puts it at page 107 of the record of appeal:

The second Defendant gave different versions of his case. In his pleadings, he said he was advised to plead guilty so that he would only have to pay a fine in order to get his freedom, but he changed his story in his evidence to say that he pleaded guilty because “he was compelled by the reckless driving of the Plaintiff’s driver to overtake the car ahead of him when confronted with potholes”. This version of the 2^nd Defendant compels me to conclude that the second Defendant was not a reliable witness and was only trying to escape liability. The Defendants were entitled to displace the prima facie evidence of negligence but in my view they failed to.

This primary finding of fact by the learned trial Judge that the accident was caused by the 2^nd Defendant is unassailable. This is because the Defendants failed to match the Plaintiff with a more cogent and convincing evidence to displace the iron-clad intergrity of the Plaintiff’s case. Indeed as aforementioned earlier, the Defendants lined up an impressive array of cases about the burden of proof such as In re Ashalley Botwe Lands; Adjetey Agbosu & Others v. Kotey & Others (supra); Majolagbe v. Larbi (supra) West African Enterprise Limited vs. Western Hardwood Enterprise Ltd. (1995-96) 1 GLR 155 at 157; Ababio v. Akwasi (supra) Adwubeng v. Domfeh (supra) and Kodilinye v. Odu (supra).

Throughout the record of appeal, the Defendants did not profess a single evidence apart from their pleadings to move their case forward. Whereas as aforementioned, the Plaintiff successfully tendered Exhibits “A”, the “Police Accident Report” and Exhibit “B”, the Court proceedings of the Assin Fosu District Court in which 2^nd Defendant pleaded guilty, the Defendants failed to lead any other evidence, apart from the bare statement of defence and their witness statement, the latter of which is full of contradictions and conflicts, particularly the evidence of the 2^nd Defendant as aforementioned.

Ironically, the Defendants’ counsel in his written submission rather accused Plaintiff of merely rehashing the contents of its witness statements and pleadings.

Further, counsel for Defendants contended that “the Respondent ought to have shown or exhibited the photograph of their car so mangled especially as they relied on the doctrine of res ipsa loquitur. This argument of the Defendants’ counsel has no legal foundation that the Plaintiff ought to have exhibited photograph of the vehicle it claimed was extensively damaged. We do not know which section of the Road Traffic Act, 2004 (Act 683) or any other law which mandates a Plaintiff to tender the pictures of his accident vehicle, failing which the case would not succeed. The extent of the damage of Plaintiff’s vehicle and its consequence would be considered in the last two grounds of appeal.

It is as if the Defendants forgot that they had counterclaimed for a declaration that the Plaintiff’s driver was negligent in driving the said vehicle on the said date which resulted in the accident and general damages for negligence and costs. What this means is that the Defendants cannot pretend that they have no burden to prove their counterclaim, since same is ranked equally as a separate and independent action against the Plaintiff. Indeed all the cases which were lined up by the Defendants’ counsel on the burden of proof in a civil action caught the Defendants in the web of their woeful lack of leading evidence to back their counterclaim. It is in the same vein why the Defendants submission that the Plaintiff failed to call the investigating officer No. 37799 G/Cpl. Mark Owusu and the drivers of the other two vehicles is of no moment. This is because all those people were available for the Defendants to summon them to the trial court to testify for them, if they found their evidence of probative value. And since the Defendants failed to marshal any evidential resources they should stop blaming the trial judge for their weak and groggy case.

Apart from this, section 127 of the Evidence Act has exploded the argument in favour of the trial court’s correct reception of Exhibit “B” the court proceedings at the Assin Fosu Magistrate Court where 2^nd Defendant was sentenced to a fine of 80 penalty units or in default 6 months IHL. Section 127 provides:

Evidence of a final judgment in a criminal action of a Court in Ghana adjudging a person guilty of a crime is not made inadmissible by section 117 when offered to prove any fact essential to the judgment.

From section 127(1), the conviction of the 2^nd Defendant in this instant case is a fact which has been proved. It is therefore admissible. See Pieterse vs. Amankrah (1982-83) GLR 785 and Nunoofio vs. Nunoofio (1989-90) 1 GLR 683.

Finally on this issue of admitting the conviction of the 2^nd Defendant into evidence under section 127(1) of the Evidence Act, Prempeh J in the case of Dwira v. Ocansey (1963) 1 GLR 268 h. 1 has this to say:

Where a person pleads guilty to a criminal charge and is convicted, the record of judgment upon his plea is admissible against him in a civil action as a solemn judicial confession.

Prempeh J drew on the case of R v. Moreau (1848) 11 Q.B.D. 1028. In the case of Dwira v. Ocansey (supra), the Plaintiff’s vehicle ran into the Defendant’s car while the latter was negotiating a curve. The Defendant was subsequently convicted of careless driving on his own plea. In an action against the Defendant for damages, for his vehicle and loss of use, the Defendant objected to the record of his plea and criminal conviction being admitted in evidence.

Clearly from the above several decided cases and section 127(1) which is a potent statutory provision, the Defendants cannot wriggle themselves out of the solemn confession of guilt of the accident on that 20^th November 2013 for which the learned trial Magistrate convicted him on his own plea simpliciter.

Finally on this ground of the appeal, Defendants counsel referred to the case of Yamusah v. Mahama and Another (supra) and made same available to the Defendants to take cover under that case. It is the argument of Defendants’ counsel in his written submission that “the court held that the proof of the criminal court on negligence was not conclusive evidence of liability for negligence”. However the learned Plaintiff’s counsel in reply demurred against the argument of the Defendants’ counsel. Counsel for Plaintiff contended that the trial Judge at page 106 of the record of appeal factored the judgment of Benin J (as he then was) in Yamusah v. Mahama (supra) before coming to her decision that the 2^nd Defendant was responsible for the accident of that night.

As an appellate court with the luxury to review the entire evidence on record, we think the trial judge is right to reach her conclusions. This is because all the parameters conducive to safe driving have been breached by the 2^nd Defendant driver.  First he was overtaking in town.  Secondly as a driver driving in the night where visibility was reduced considerably, 2^nd Defendant ought to have exercised due care and attention. It is immaterial whether or not there was street light. All these and other particulars of negligence found at page 3 of the record of appeal speak against the Defendants’ case.

We have carefully looked at the competing submissions traded by both counsel on the first ground of this appeal that the judgment is against the weight of evidence. We think the Defendants counsel failed to convince us why the trial court’s findings should be overturned. In the result, this ground of the appeal is hereby dismissed.

The next two grounds of the appeal were lumped and argued together. Ground 2 is:

2. The learned judge erred in her conclusions and computation of GH¢200.00 daily sales and 90 days period for loss of use of Mercedes Benz Bus with Registration No. GS 3934 -12 and

3. The failure of Plaintiff/Respondent to introduce the insurer or the mechanic who repaired Mercedes Benz Bus with Registration No. GS 3934 -12 to give evidence in respect of the period used for the said repairs was fatal to Plaintiff Respondent’s case.