ANSAH v. BUSANGA

JUDGMENT OF ANIN J.A.

This is an appeal by the first defendant only (the appellant for short) from the judgment of the Takoradi Circuit Court dated 10 March 1971, awarding ¢1,700.00 damages in favour of the plaintiff (the respondent herein) in an action instituted under the Civil Liability Act, 1961 (Act 176), in respect of the death of his brother, Adama Busanga.

The gist of the respondent's case was that on the day in question at about 7 p.m. the late Adama Busanga, an employee of the appellant was on board the appellant's vehicle as it was being driven by his driver and servant, the second defendant. They were travelling from Aboso towards Tarkwa; and on reaching the A.B.A. junction, the second defendant so carelessly drove the vehicle that it went off the road into a ditch, thereby causing the death of Adama Busanga.

In the court below the case was contested by the appellant only. Having been duly served with the writ of summons, the second defendant failed to enter appearance or to file any defence. Consequently, interlocutory judgment was signed against him, leaving damages to be assessed later. For his part, the appellant offered no evidence in response to the plaintiff’s case which was closed after his testimony; and the appellant's [p.492] counsel thereafter made a submission of no case to answer. Learned counsel announced further that if his submission was overruled, his client would offer no evidence.

The trial judge's reserved ruling and judgment went in favour of the respondent. He held that the second defendant had, by his conduct in pleading guilty to the criminal charges arising from the accident, and by his conduct in not contesting the action and suffering interlocutory judgment to be signed against him, admitted negligence and liability to the action. He also found that a prima facie case of negligence had been established against the appellant. The facts admitted or proved raised the maxim res ipsa loquitur in his favour; for "vehicles managed with due care and skill do not go off the road and end up in the bush." He also held that the vicarious liability of the appellant for the second defendant had been sufficiently established. Having admitted his ownership of the vehicle in his pleading, the appellant must be presumed to be the master of the driver who negligently drove the vehicle; and the latter must also be presumed to have acted in the course of his employment. The allegations of negligence, dependency and other ingredient