IN THE SUPERIOR COURT OF JUDICATURE
IN THE HIGH COURT br> HO - A.D 2015
KWAME MENSAH AKOTO - (Plaintiff)
WAHABU INUSAH YAW MENSAH - (Defendant)
DATE: 20TH FEBRUARY, 2015
SUIT NO: E8/11/2008
JUDGES: PATRICK BAAYEH JUSTICE OF THE HIGH COURT
MR. KOKU MENSAH AKUDE HOLDING BRIEF OF ERNEST GAEWU FOR PLAINTIFF
GODWIN KPORBLE FOR DEFENDANTS
Plaintiff instituted this action claiming General and special damages jointly and severally against the defendants.
The defendants entered appearance and also filed their defence denying plaintiff's claim. At the close of pleadings the issue settled for determination are;
Whether or not on the 5th day of December, 2006 at about 4.20 pm the 1st defendant negligently drove Mercedes Benz Cargo truck No AS 948 -E near Ofosu on the Nkwanta-Bomboe road, that he ran over Happy Millicent Yawa Fiagbor and crushed her to death.
Whether or not the accident and the death of the deceased was caused solely through the negligence of the I" defendant.
Whether or not the 1" defendant is guilty of the particulars of negligence pleaded in paragraph 7 of the statement of claim.
Whether or not the plaintiff suffered the particulars of special damages pleaded in paragraph 9 of the statement of claim.
Whether or not is defendant is liable to pay the particulars of special damages pleaded.
Whether or not the plaintiff is entitled to the reliefs as per endorsement on the writ of summons.
Any other issues not herein before mentioned but raised and arising on the pleadings.
Evidence was concluded on 22/07/2014 when defendants closed their case. Counsel for plaintiff was ordered to file his closing address by 11/08/2014 and counsel for defendant was also to file his address by 28/08/2014. The case was adjourned to 27/10/2014 for judgment. Sadly both lawyers for the parties failed to file their address and have not done so to date. I must put on record that closing address of counsel go a long way to assist the court appreciate each party's case especially with regards to certain technical matters that the court may not advert its mind to.
The case of the plaintiff as can be discerned from the pleadings is quite simple and devoid of any complexities. The plaintiff is the Administrator of the estate of the deceased, Happy Millicent Yawa Fiagbor, a final year student of Dambai Teacher Training College at the time of the unfortunate incident. The 1st defendant was at all material time relevant to this case the driver of a Mercedes Benz Cargo vehicle with registration No AS 948-E and the servant of the 2nd defendant, 2nd defendant being the owner of the vehicle. On 5th December, 2006 at about 4:20 pm the 1st defendant was driver of the said vehicle from Dambai towards Nkwanta. On a section of the road near Ofosu on the Nkwanta - Dambai feeder road, 15 defendant ran over the deceased crushing her to death instantly. In the view of plaintiff the accident was caused solely through the negligence of the 1st defendant and that 2nd defendant is vicariously liable for the negligence of the 1st defendant.
Plaintiff gave the particulars of negligence as follows;
Driving at an excessive speed
Failing to stop, swerve or in any way so to manage his vehicle as to avoid the accident
Failing to keep to his side of the road.
Failing to see the deceased in time enough or at all so as to avoid the accident.
Plaintiff also pleaded particulars of special damages to the tune of GH¢16,120.00.
The plaintiff gave evidence by himself and did not call any witness. The defendants also gave evidence by themselves and did not call any witness.
In his evidence to the court plaintiff testified that the late Happy Millicent Yawa Fiagbor was his daughter. That she was a final year student of Dambai Teacher Training College. She was 22 years old. That Happy died in a motor accident on Dambai – Nkwanta Road on her to way to Ofosu with a colleague student on a bicycle.
Plaintiff told the court that Happy was knocked down by a vehicle with registration No. AS 948 E driven by the 1st defendant and owned by 2nd defendant. That she died instantly on 5/12/2006. That she was knocked from behind. After her death, plaintiff said he obtained letters of Administration to administer her estate. After the accident the body of Happy was deposited at Nkwanta Hospital and later moved to Ho Government Hospital.
Plaintiff told the court that he arranged and got the body buried at Tanyigbe Anyigbe. Plaintiff tendered receipts of his expenditure for the funeral.
The 1st defendant told the court that on 5/12/2006 he went to Dambai and on his way back to Nkwanta, at a section of the road he saw a boy or young man riding a bicycle with a young lady sitting at the back (pillion rider). That the young man was riding the bicycle with speed and wanting to overtake him so he stopped and he passed, so the young man and the lady were now in front of him. At a certain stage he decided to overtake him and the bicycle rider waved him to pass. That they were both descending a hill. That just as he was about to pass the bicycle, the lady (pillion rider) jumped from the bicycle and fell on his lane. According to 1st defendant when he saw that the deceased had fallen in his lane he swerved the vehicle to avoid her. In the process the front tyres entered some water in a gutter and the back tyre crushed the deceased to death.
1st defendant said he was prosecuted together with the bicycle rider but he was found not guilty and the bicycle rider was convicted. 1st defendant denied that he was negligent or that the accident was caused through his negligence.
On his part, 2nd defendant told the court that he was not at the scene of the accident and so could only talk of what he was told. That on the day of the accident he was at Koforidua for treatment and by the time he came his wife had organized and taken the deceased's family to the scene and to Dambai Training College. He said after police investi gations his driver and the bicycle rider were prosecuted at the Circuit Court, Hohoe. His driver (1st defendant) was acquitted of the charges while the bicycle rider was convicted. He denied liability because according to him his insurers said since 18 defendant was not convicted they were not liable to pay any damages to plaintiff.
None of the parties called any witness. In this judgment I shall deal with the first and second issues together since their resolution will determine whether or not the defendants are liable to plaintiff's claim. These issues are;
Whether or not on 5th day of December, 2006, the 1st negligently drove Mercedes Benz Cargo truck No. AS 948 - E near Ofosu on the Nkwanta Bamboe road, that he ran over Happy Millicent Yawa Fiagbor and crushed her to death; and
Whether or not the accident and the death of the deceased was caused solely through the negligence of 1st defendant.
Among the parties who gave evidence, 1st defendant was the only one at the scene of the accident. Plaintiff was not an eye witness, neither was 2nd defendant. To prove the negligence of the 1st defendant plaintiff ought to provide cogent evidence and not to rely on hearsay. The facts indicate that the cyclist and 1st defendant were heading towards the same direction and both were descending a hill when the accident occurred. The occurrence of an accident resulting in an unfortunate loss of life does not necessarily connote negligence. In the same way it is just not enough for a party to mount the witness box and repeat his pleadings.
The Supreme Court held in the case of BARIMA GYAMFI VRS AMA BADU (1963) 2 GLR 596 (Holding) that;
"In a claim made by a plaintiff, there is no burden on the defendant to disprove the claim so that however unsatisfactory or conflicting the defendants evidence may be, it cannot avail the plaintiff. The evidence of the defence only becomes important if it can upset the balance of probabilities which the plaintiff's evidence might have created in the plaintiff's favour or if it tends to corroborate plaintiff's evidence or tends to show that the evidence led by or on behalf of the plaintiff was true".
Thus the plaintiff failed under section 14 of the Evidence Act, 1975 (NRCD 323) to discharge the burden of proof on him. Section 14 of Evidence Act provides that;
“Except as otherwise provided by the law, unless and until it is shifted a party has the burden of persuasion as to each fact the existence or non existence of which is essential to the claim or defence he is asserting.
See also ZABRAMA VRS SEGBEDZI (1991) 2GLR 221 CA.
In 1st defendant's evidence he said when he sighted the cyclist with a pillion rider he hooted his horn and the cyclist signaled for him to pass and while he had shifted to the offside lane to overtake, the cyclist, suddenly cross the road and in the process the deceased fell onto the road. Much as he tried to avoid her, his back offside tyre crushed her to death while his front tyres even entered a gutter. This piece of evidence tallies with the explanation given by Tam Nelson Joshua, the cyclist, at the Circuit Court, Hohoe. He pleaded guilty with explanation and in his explanation he said "I was sent to deliver a letter from Dambai to Ofosu. Happy requested to go with me and I consented and took her as a pillion. On the way I heard a loud toot of a horn from behind. I crossed to the offside to leave the lane but the girl jumped onto the road and she was crushed on the head by the vehicle.”
1st defendant also told the court in his explanation at the Circuit Court that;
“I had started swerving to the offside to avoid the bicycle rider when he suddenly swerved into my lane.
The girl then jumped and fell into the road and unfortunately she was killed”.
From the accounts of these two people, i.e. the bicycle rider and 1st defendant, it is clear that the bicycle rider was aware of 1st defendant's vehicle behind him. But instead of keeping to his lane to enable 1st defendant pass, he chose to cross the road to his offside lane. It was in this process that the deceased panicked and jumped onto the road. It is clear that by the time Joshua Tam crossed the road, the 1st defendant had already made up his mind to overtake him and so moved to the offside lane. This also explains why in an effort to avoid the deceased, it was the offside back tyre of the vehicle that crushed the deceased. It is no wonder therefore that Joshua Tam, the bicycle rider was rather convicted and 1st defendant acquitted and discharged of the offences of dangerous and inconsiderate driving or negligently causing harm. Thus the accident was caused by the reckless and dangerous riding of Joshua Tam, who in the face of such danger decided to cross the road when 1st defendant was about to overtake him.
1st defendant cannot be said to have caused Joshua Tam to cross the road or to cause the deceased to panic or fall on the road. The evidence is also clear that both 1st defendant and the cyclist were descending a hill. In that circumstance, it could not have been possible for 1st defendant to stop suddenly.
I find as a fact that the accident and the resultant death of Millicent Happy Yawa Fiagbor was caused solely by the ne gligence of Joshua Tam and not 1st defendant. In the circumstances I hold that plaintiff has not been able to prove his case against the defendants. I therefore dismiss his claims against the defendants.
In the sad circumstances of this case I make no order as to cost.