BOATENG v. OPPONG AND ANOTHER

JUDGMENT OF ANIN J.A.

At about 6 p.m. on 23 December 1968, a Kumasi tailor by name Kwaku Gyimah alias Dwomoh hired the second defendant’s tro-tro lorry No. AT 9491 to convey him and his mourning party to the funeral of his daughter at Kumawu Bodomase. Among the passengers who undertook the trip was the plaintiff, a fellow tailor resident at Kumasi; and the lorry was driven by the first defendant, a servant and employee of the second defendant. The outward journey was uneventful. However, on the return journey to Kumasi the same night, an accident occurred just after a curve on the outskirts of Dadiase village. According to the plaintiff, the driver drove the lorry so fast and negligently that “it ran into a ditch” and he fell off the vehicle and sustained injuries for which he received medical treatment for some period. This action was accordingly instituted in the High Court, Kumasi, against the defendants jointly and severally for special and general damages for the first defendant’s negligence.

On the issue of the accident, the second defendant (the owner of the lorry) in his pleading stated that “the vehicle did not at any time run into the ditch as averred by the plaintiff.” However, he refrained from giving his version of what actually transpired on the day in question. Neither did he testify in court. In contrast, his driver [p.948] pleaded in paragraph (5) of his statement of defence that in the course of the journey “one of his tyre rod ends came off and he managed to stop his vehicle against a culvert thereby preventing an accident.”

In evidence, the plaintiff attributed the accident to the excessive speed at which the driver was driving on a dusty road coupled with his negligence in not negotiating the curve safely, as a result of which the vehicle careered off the road and collided against the concrete culvert and fell on its near-side. His principal witness, Kwaku Gyimah, the bereaved tailor, gave an account of the accident which amply corroborated the plaintiff’s in all essential particulars.

If I may quote the relevant portion:

“On our return journey at the outskirts of Dadiase village the driver had to pass through dusty road and the lorry got out of the driver’s hand and hit a culvert. When it struck a culvert thus the plaintiff fell off the vehicle.”

To a suggestion under cross-examination that it was the tyre rod ends which got off, Kwaku Gyimah replied that it was not correct. “It was when the lorry hit the culvert that an iron