JUDGMENT OF APALOO J.A.
On 8 February 1967, we allowed an appeal from the judgment of the High Court in this matter. We set aside that judgment and restored the judgment of the circuit court given in favour of the appellant. We intimated that we would set out our reasons later on and this we now proceed to do.
The case arose as a result of an accident which occurred on Hall Avenue, Accra, on 16 December 1962. The facts which gave rise to the action, are not in dispute. The appellant was the owner or, at any rate, was in charge of a Morris Oxford saloon car No. SG 7591. At about 4.30 p.m., on the aforesaid date, he parked this car in Hall Avenue. The appellant himself remained seated in the car. The respondent who was then driving a Mercedes Benz saloon car No. [p.233] AF 6277, reversed into Hall Avenue and hit the appellant's car while it was still stationary. This collision damaged the bonnet and radiator grille of the appellant's car. Accordingly, the appellant drove his damaged car to the garage of Messrs. C.F.A.O. where repairs were effected on it at a cost of £G70. The car took 42 days to repair and as it was used as a taxi cab, the appellant lost the earnings for a total number of 42 days. Accordingly, the appellant instituted the present action against the respondent to recover not only the cost of repairs but the loss of earnings. He grounded his claim on the fact that in reversing into his car, the respondent had been negligent.
The respondent, who is himself a legal practitioner, filed his own defence in which he admitted running into the appellant's stationary car but denied that he was negligent in so doing. He averred that the damage, admittedly caused to the appellant's car, arose as a result of inevitable accident. In any event, the respondent denied that the appellant suffered the alleged or any damage.
It is important to note that in his statement of claim, the appellant pleaded that he was the owner of the car. That was not expressly denied in the statement of defence and when summons for directions were taken out, the only issues submitted to the circuit court for determination, were (a) whether or not the respondent was negligent and (b) if he was, the damages suffered by the appellant. When trial eventually opened before the circuit court, the plaintiff gave evidence of the accident and related how the collision occurred and the pecuniary loss he sustained thereby. He was cross-examined by the respondent who, as we said, is a law
