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JUDGMENT
TWUMASI, J.A.:
This is an appeal from
the judgment of an Accra High Court, dated 12th May
1999. For my convenience, I intend to retain the
positions of the parties as they stood at the trial
Court. As their names clearly suggest, the plaintiff and
the second defendant were Mr, and Mrs. Badu-Anum,
lawfully married. While the honeymoon lasted, the couple
naturally did all that one would expect from a couple in
those circumstances including, of course, the sharing in
each other’s sorrow and joy. During this period, the
plaintiff lost a relative and the second defendant had
to accompany her and other relations to the funeral. As
any responsible husband would do, the second defendant
provided as their means of transport to and from the
place of the funeral celebration, his Landrover Jeep
with registration No. ACR 6201. On their return from the
town Mankessim, where the funeral took place, an
accident occurred at Ekumfi Dunkwa between the Landrover
and an articulated truck with registration number WRA
3233 which was traveling from Accra, the opposite
direction. The result of the impact was so disastrous
that any ordinary person could not help but comment that
ill fate had cruelly inflicted upon the couple a
sequence of agony, because the plaintiff sustained
severe injuries while other passengers also had their
share of the injuries including one fatality. One of the
passengers by the name Ablor Adjei sustained serious
injuries as the others, but he was the only unfortunate
one who succumbed to the injuries at the Cape Coast
Central Hospital.
The police investigated
the accident and collected statements from some of the
plaintiff’s relations who survived the sad event and
also from the 2nd defendant. The plaintiff also made a
police statement. On completion of their investigations,
the police arraigned the 2nd defendant before the
District Court, Saltpond on one charge of careless
driving and six counts of negligently causing harm, but
he emerged victorious by his acquittal and discharge on
all the charges to each of which he pleaded Not Guilty.
The police report indicated that that was final,
implying that the articulated truck driver was never
charged and the police had no intention of ever doing
so. One curious thing about the case was that there was
no police sketch of the scene of the accident to
indicate such vital factors for determining fault as the
point of impact and other distances and resultant
positions of the two vehicles in the course of the
impact. The police, however, prepared their final
accident report, that stereotype document with which
insurance law practitioners are too familiar. As the
direct result of the accident, the plaintiff felt
entitled to institute legal proceedings for damages
against the person she perceived to be the tortfeasor
and the axe fell on the 2nd defendant, her husband who
was driving the Land rover at the material time of the
accident. By way of casual observation made without
prejudice, I should have thought that the better option
would have been an action against the two drivers and I
take cue and sustenance in my view from learned opinions
of eminent jurists both overseas and at our shores here
in Ghana including Lord Denning, Chief Justice Apaloo of
blessed memory, Chief justice Samuel Azu-Crabbe and
Justice Annan who happily are around with us.
Annan J (as he then
was) stated in Tishigu and Another v Abdulai Dagomba &
Others, High Court, Kumasi reported in (1967) GLR 309
that proof or evidence of a collision per se on the
highway between two vehicles traveling in opposition
directions could not without more raise an inference or
presumption against either or both drivers. Lord Denning
of blessed memory stated in Baker v Market Harborough
Industrial Co-operation Society Ltd (1953) 1 WLR 1472 at
1476 thus:
“Every day proof of the
collision is held to be sufficient to call on the two
defendants (drivers) for an answer. Never do they both
escape liability. One or other is held to blame and
sometimes both.”
In the celebrated local
case of Nyame v Tarzan Transport (1973) 1 GLR 8 C.A.,
both Chief Justice Azu-Crabbe and Apaloo expressed
opinions in support of Lord Denning’s statement of the
law. That view was succinctly articulated by Azu-Crabbe
(JSC as he then was) with Lassey and Archer JJA (as they
then were) in the case of Mensah v Gonja CA No 69/71
dated 31st July 1972 unreported and I quote:
“Collision between two
vehicles on the highway raises an inference of
negligence against the drivers of vehicles involved in
the accident and the onus is then thrown on each driver
to exculpate himself. If evidence is led by the defence,
the trial judge must decide that the accident happened
in a particular way. This principle has recently been
considered by this court in Nyame v Tarzan Transport and
I adhere to everything I said in that case”.
In my view the opinion
of Annan J (as he then was) in Tishigu v Dagomba (supra)
is not inconsistent with the opinion of their Lordships
as expressed in Nyame v Tarzan Transport (supra) and
that of Lord Denning in Baker’s case (supra). A useful
lesson for practitioners is that there can be no hard
and fast principle or practice directive that where
there is a collision between two vehicles the injured
person must as of necessity sue the drivers of the
vehicles. Where the injured person is unsure of the
guilty driver because he does not possess either
watertight evidence or otherwise, it would be counsel of
prudence to sue the two drivers. It follows that he
should not hesitate to sue one of the drivers against
whom there is overwhelming evidence of negligence
resulting in the collision. But having said this, the
advantages of suing both drivers must be obvious to
practitioners. I now proceed to look very closely at the
strength of the case made by the plaintiff against the
defendants. The plaintiff in paragraph (1) of her
statement of claim accused the second defendant of
driving at top speed and thereby causing the accident
while he was overtaking a leading taxi cab. If this was
true, then the second defendant would be adjudged guilty
because the rules in our Highway Code 1973 provide in
regulation 72 thereof that:
“72 Do not overtake:
- When to do so Would
force another
Vehicle to swerve or
slow down”.
This rule has been
judicially considered in many cases including Saunders v
Awudu (1962) 1 GLR 472. As I stated in my book “Criminal
Law In Ghana” page 599:
“It is highly essential
and imperative that a driver of a motor vehicle observe
and comply with the regulations which govern driving of
a motor vehicle on a road. Any breach of these
regulations may constitute a prima facie evidence of
careless and negligent driving:
See Dagomba v Dagomba
1969 CC48”.
Other cases of recent
publication which have supported my view include Yakubu
v Dove (1977) 1 GLR 281 CA; Aboagye v Engman (1989-90)
1 GLR 416 and Norgbey v Asante (1992) 1 GLR 506. In all
these cases the guilty drivers were found to have
breached a regulation of the Ghana Highway Code, 1973.
This is well and good but the 2nd defendant denied this
averment of the plaintiff: see paragraph 2 of the
Statement of Defence and Counterclaim filed on 15th
march 1996. The second defendant’s version is contained
in paragraphs 4 to 7 and I reproduce them hereunder:
“4. The said accident
occurred because the on-coming vehicle an articulator
registered as WRA 3233 had strayed over from its own
lane into the lane that should have been occupied by the
2nd defendant.
5. 2nd defendant was
not aware of this state of affairs until he reached to
top of a hill or rise, when the articulator came into
sight driving straight toward 2nd defendant’s vehicle in
the 2nd defendant’s lane.
6. 2nd defendant tried
to avoid a head-on collision by swerving to his left
into the lane that should have been occupied by the
articulator. This maneuver was not entirely successful
and there was a grazing or brushing collision between
the right side of ACR 6201 and the right side of the
articulator WRA 3233. Both vehicles capsized.
7. The plaintiff made a
statement to the police soon after the said accident in
which she did not make any of the allegations of
negligence on 2nd defendant’s part, including the
particulars thereof, now made by her in this suit.
It is interesting to
observe that in the particulars of negligence alleged
against the 2nd defendant the plaintiff stated as
follows:
“© overtaking or
attempting to overtake the said unidentified vehicle in
the said area that ended in the lane of the on-coming
vehicle No. WRA 3233”.
Earlier in paragraph
(1) of her Statement of Claim the plaintiff had pleaded
as follows:
“and whilst overtaking
an unidentified vehicle so negligently drove, managed
and controlled his said Land Rover along that road into
the lane of an on-coming vehicle No. WRA 3233…….”.
In her evidence in
court, however, the plaintiff was emphatic that the 2nd
defendant was overtaking a taxi cab. This raises a
crucial question mark for comment at the appropriate
time. On the other side of the spectrum, the 2nd
defendant stated in his evidence before the court that
before he reached the top of the hill from where he
sighted the articulator he had overtaken a mini bus: He
testified as follows at page 45 of the record of
appeal:-
“About 15 miles from
Mankessim I overtook a mini bus and soon after I climbed
a small hill. Then after the hill there was an
articulator vehicle. I observed that it was traveling in
my lane directly infront of me I therefore swerved into
the empty lane to avoid a head-on collision. I swerved
to the lane of the articulator which was empty. I
avoided the articulator but it hit the right side of my
door. I did not notice any damage to the articulator. I
was injured. I had head injury, leg injury, my right
hand was injured. All the passengers sustained injuries
and my nephew later died.”
In the same vein, this
testimony will be scrutinized at the due time in the
cause of this appeal. The third and, perhaps, the
trickiest forensic observatory in this case is the
police accident report, Exhibit B. The report is
remarkable for its brevity and cutting edge and for my
purposes and in the interest of fairplay I feel
constrained to reproduce it, if for no other reason than
that it throws a crystal clear sunray on its probative
value and significance. It goes like this:-
“Brief facts. One
20/2/94 at about 4.30pm suspect driver Geofrey Badu-Anum
was driving Landrover Jeep No. ACR 6201 along the
Accra-Mankessim road from the direction of Mankessim
towards Accra with six persons on board at top speed. On
reaching a section of the road after Ekumfi Dunkwa, and
whilst overtaking an unidentified vehicle lost control
and drove into the lane of on-coming vehicle No. WRA
3233 and collided head-on. Both vehicles were damaged
and all the occupants on vehicle No. ACR 6201 sustained
serious injuries and were rushed to the Cape Coast
Central Hospital for treatment where victim Ablor Adjei
died on arrival.
This police report,
Exhibit B, was tendered by one Daniel Arthur who claimed
to be a policeman attached to the Esakyiri Police
Station. He testified as DW1 after the plaintiff had
closed her case, so he was apparently called by the 2nd
defendant for the purpose of tendering Exhibit B. In his
testimony which was not subjected to any
cross-examination by counsel for the plaintiff, DW1
stated that all the five passengers made statements to
the police and the originals were in fact tendered. In
actual fact, what I have on the record of appeal are
statements made by the plaintiff, the 2nd defendant and
four others who claimed to have been passengers on the
Landrover. The 2nd defendant testified that all the
passengers were relatives of the plaintiff. This was not
challenged in cross-examination. None of them was called
to testify in court. DW1 testified that he referred the
case to a Sergeant Manu, but no account is made about
what he did about the case by way of investigation. The
extent to which these police statements impacted on the
resolution of the questions of fact posed thereby in
terms of their probative value or otherwise will be duly
and, hopefully, satisfactorily considered at the pivotal
stage in this appeal. Suffice it to say at this
juncture, that in none of the police statements
including that of the plaintiff, was any mention made of
the Landrover overtaking any vehicle immediately before
or simultaneously with the collision of the two
vehicles.
The second phase of the
appeal concerns the claim against the 1st defendant for
damages for vicarious liability on the ground alleged by
th.e plaintiff that the 1st defendant, a limited
liability company, was at all times material to this
case, the owner of the Landrover. Paragraph 1 of the
Statement of Claim provides the detail of the claim as
follows:
“(1) On about the 20th
day of February 1994 at about 1.30pm the plaintiff was
a passenger in Landrover Jeep registration number ACR
6201 owned by the 1st defendant, formerly known as Cluff
Taywood Mining Ltd., a company registered to do business
in Ghana and driven by the 2nd defendant as its servant
or agent along the Accra-Mankessim motor road…….”.
In response to this
averment the 1st defendant filed a statement of defence
on the 22nd March 1996 (See pages 11 to 12 of the record
of appeal). The gist of paragraph 2 of the defence is
that under an agreement between the 1st defendant and
the 2nd defendant’s company known by the name Canom
Farms and Mining Industry Limited, the 1st defendant,
for valuable consideration, gave to the 2nd defendant’s
company cash the sum of US $7,500.00 together with the
reconditioned Land rover with registration number ACR
6201 in or about October 1991. Subparagraphs (v), (vi)
and (vii) of the said paragraph 2 read as follows:-
“(V) the 1st defendant
gave to the 2nd defendant all the appropriate papers on
the vehicle to make it possible for 2nd defendant to
effect a transfer of the vehicle into his company’s
name.
(vi) The 1st defendant
was not aware that the vehicle was still in its name.
(vii) The 1st defendant
says that for all practical purposes it had transferred
Land rover No. ACR 6201 to the 2nd defendant’s company
by November 1991 and has since then, had no right, title
or control over the said vehicle, its movements or
owner”.
The curious thing in
the pleadings is that a reply was filed on behalf of the
plaintiff to the Statement of Defence and counterclaim
filed by the 2nd defendant, but there was none filed in
respect of the statement of defence filed on behalf of
the 1st defendant. I did not see any appearing in the
index to the record of appeal. I combed the full record
from page 1 to 111 including the list of exhibits but to
no avail. In my view, the failure by the plaintiff to
file a reply either to deny or admit any of the
averments made by the 1st defendant in the statement of
defence amounted to admission of the said averments and
there was no need for the 1st defendant to produce
evidence in their proof: see Court of Appeal decision
in Armah v Addoquaye (1972) 1 GLR 109. As a factor in
the determination of this appeal, the material facts
alleged by the 1st defendant which I have quoted in
extenso above shall be treated as proven facts and may
form the basis of any conclusions of law as the court
may deem fit. Even looking at the evidence, there is
sufficient justification to support this finding that
the 2nd defendant was the owner of the Landrover Jeep.
In his evidence in chief the 2nd defendant stated at
page 45 of the record of appeal thus:
“I acquire the vehicle
from the 1st defendants around 1993-94. It was a
compensation from the 1st defendants when the 1st
defendants were leaving Ghana”.
There was an obvious
conflict in the testimony as to the date the 2nd
defendant acquired the vehicle as per the statement of
the 1st defendant I have quoted above and his evidence
in court. In the former the date is in or about 1991, in
the latter about 1993-94. The law as I understand it is
that where there is a conflict in the testimony of one
witness or between the testimonies of two witnesses on
an issue, the court must declare the conflict immaterial
if on the evidence as a whole there is material
corroboration from the opposing party:
See Obeng v The
Republic (1971) 2 GLR 107 CA.
During
cross-examination of the plaintiff the following
questions and answers appeared at pages 24-25
“Question: Divorce
proceedings are pending between you and your husband
Answer: Yes.
Question: The
petition was filed by you?
Answer: Yes.
Question: In that
petition you claimed that the vehicle which was involved
in the accident belonged to your husband
Answer: Yes.
Question: You are
claiming interest including the car of your husband
Answer: Yes.
Question: In the
divorce proceeding the 2nd defendant insisted that the
vehicle was his.
Answer: I cannot
recall.
Question: To your
knowledge the vehicle belongs to your husband.
Answer: Yes.
Question: As you
stand as at now you stand by the averments in Exhibit 1
& 2
Answer: Yes, but
the insurance is in the name of the 1st defendant.”
From the foregoing
analysis of the pleadings and the evidence adduced
before the trial court, two facts are incontrovertible
and they are (1) That the Landrover was the property of
the 2nd defendant at the time of the accident (2) That
the insurance covering it was in the name of the 1st
defendant. The 2nd defendant in his evidence in
cross-examination admitted that the insurance was in the
name of the 1st defendant. He claimed that he changed
the name and replaced his, but he was not sure whether
it was before or after the accident and in any event he
could or did not produce his own insurance at the trial.
In due course the legal effect of these established
facts will be articulated. The learned trial judge made
the following findings and conclusions of law by way of
summary:
(1) That the 1st
defendant was vicariously liable for the consequences of
the 2nd defendant’s driving of the Land rover Jeep
because :
(a) The vehicle had
been registered in the 1st defendant’s name at the time
of the event.
(b) the insurance
policy was still in the name of the 1st defendant.
(c) the foregoing
circumstances made the 1st defendant still owner of the
vehicle.
(d) an owner may be
held liable for vicarious liability even though the
driver may not be his servant.
Then on the question of
negligent driving the learned trial Judge made the
following positive findings:
(2) That the 2nd
defendant was guilty of negligent driving and was liable
in an action for damages for that tort because:
(a) the plaintiff’s
testimony was amply corroborated by the police report
Ex. B
(b) the 2nd defendant
was negligent because he overtook a leading vehicle when
it was not safe to do so.
On the basis of these
findings, the leaned trial judge entered judgment
against the two defendants jointly and severally and
awarded the plaintiff twenty million cedis (¢20M)
damages and two million cedis (¢2M) costs. The
defendants appealed against the judgment on a number of
grounds on both the facts and law. I intend to
capitulate the points germane to the appeal with a view
to narrowing the issues of fact and law involved. On
behalf of the 1st defendant, Counsel submitted that on
the facts before the trial court, the leaned trial judge
erred in holding that the 1st appellant was vicariously
liable. Then on the question of negligence both Counsel
for the defendants univocally criticised and faulted the
learned judge’s findings for a number of reasons. In
particular, as against the finding that the plaintiff’s
evidence was corroborated both counsel for the
appellants submitted that (1) there was a material
inconsistency between the plaintiff’s evidence in court
and her police statement in the sense that whereas in
the police statement which she made when the facts were
fresh in her mind, she never made no mention of the 2nd
defendant overtaking another vehicle, in her evidence in
court she introduced these facts. Perhaps, what counsel
were saying in essence was that the evidence in court
must have been concocted after the police statement had
been made and consequently was an afterthought.
To counsel for the 2nd
defendant, the police report which tallied with the
plaintiff’s testimony in court on the issue of
overtaking since it was itself an afterthought could not
afford corroboration and in any event in law a witness
cannot corroborate himself. In his view the police
report had no probative value so as to support or
corroborate any evidence of the plaintiff. Counsel for
the 1st defendant basing himself on the case of Fynn v
Badu (1971) 1 GLR 80, submitted that on the facts, the
2nd defendant owned the land rover in his own right and
the 1st defendant could not be held vicariously liable
for the acts of the 2nd defendant. Counsel for the
plaintiff, for his part, strongly supported the findings
of the learned trial judge based on the facts that the
insurance policy was in the name of the 1st defendant
who he contended had an insurable interest. On the
question of negligence he attached considerable weight
to the police report and extolled its probative value
even to the status of prima facie case. Counsel for the
2nd defendant appealed and made submission against the
quantum of damages and costs that they were in each case
excessive. The nature of the injuries suffered by the
plaintiff did not feature prominently in the appeal. Now
is the proper stage for me to express my views on the
wrongness or correctness of the judgment appealed. I
would like to start with the 1st appellant’s position as
to vicarious liability. In this regard, I deem it
essential to be clear about our terminology. My
understanding of this term is simple. Vicarious
liability in the legal conceptual sense is transferred
liability. As a basic legal norm, liability for the
consequences of a tortious act is invariably attached
primarily to the tortfeasor, but under the rule which I
term transferred liability, the law extends the
liability to another person who then becomes jointly and
severally liable with the tortfeasor for the act done or
committed at his instance and upon his direction or
authorisation or in his interest or for his purposes.
Relationships under
which such authorisation or direction or interest are
often presumed in law include; principal and his agent,
a master and his servant, an employer and his employee
or such blood or social relationships as exist between a
parent and his child, a person and his friend and so on,
as the category of such relationship is never closed,
the test always being whether there is proof of
authorisation or direction or interest as stated above:
See Honeywill v Larkin (1934) 1 KB 191; Mersey v Coggins
(1947) A.C. 1; Larren v Henlys (1948) 2 All ER 935;
Omrod v Crosville (1953) 2 All ER 753 and our local case
Republic v National Investment Bank, Ex Parte Cantil
(1984-86) 1 GLR 237. In the instant case, there was
nowhere in the evidence which I have endeavored to
outline where any of the essential elements of vicarious
liability as explained by me is disclosed. The learned
trial judge sought to justify his finding on the dictum
of Lord Denning in the case of Omrod v Crosville
(supra). At page 81 of the record of appeal he cited
this case and quoted Lord Denning as saying:
“An owner may be liable
although the driver is not his servant”.
The learned trial judge
in my view misapplied the facts in Omrod’s case to those
in the instant case. In Omrod’s case, the owner of a
Healey car was held liable for the negligence of a
friend who was driving it from Birkenhead to Monte
Carlo, for it was proposed that on arrival they should
use it for a joint holiday. In that case, the owner of
the car authorised the use of it for his interest and
purposes. This English case is therefore distinguishable
from the instant case, because the 1st defendant had
divested himself of his ownership of the Landrover and
had not authorised its use for the funeral in which he
had no interest. The Omrod’s case is further to be
distinguished on the ground that in the instant case,
ownership of the Landrover was no longer vested in the
1st defendant as it was in Omrod’s case.
The learned trial
judge, however, found that ownership of the Landrover
still remained in the 1st defendant because of the fact
that the insurance policy on the vehicle as well as the
registration of the vehicle were in its name. In
resolving this issue, I feel inclined to quote verbatim
paragraph 2/3 of the statement of case filed by counsel
for the 1st defendant:
“Finally on this point
the 1st appellants contend that the learned trial judge
erred in disregarding relevant decisions brought to his
attention. For example, Fynn v Badu (1971) 1 GLR 80 the
head note states:
“There is not sound
policy peculiar to Ghana for imposing vicarious
liability upon a person who either sells on credit or
hires his vehicle to a third person to whom he
relinquishes possession and control simply because he
retains in himself the bare legal title and is
interested only in the balance of the purchase price or
the hire purchase rentals. If strong reasons of public
policy require that vicarious liability should be
imposed on an owner of a vehicle in such a case, it
should be done by enacted, not judicial legislation.”
That case was a hire
purchase agreement and the Court of Appeal declined to
impose upon the owner vicarious liability for the
tortious act of the hire-purchaser. In the other cases
cited by Counsel for the 1st defendant, namely, Sharani
v Badu 23 February 1970 CA unreported where the owner
had sold his vehicle to another who in turn engaged the
tortfeasor to drive it and the other case Amegbor v
Chahal (1967) GLR 341 (Annan J as he then was) the court
held that vicarious liability could not be imposed on
the owners of such vehicles. Counsel for the plaintiff
reacted adversely to the submissions of his learned
friends and I wish to quote the relevant passage of his
statement of case at page 3 thereof:
“(ii) The trial court
was right in holding that since the 1st defendant was
not able to convince the court and give evidence to
rebut the presumption of law that policyholder is deemed
to be owner of the vehicle we submit that the dictum of
Lord Denning in Omrod v Crosville Motor Services Ltd.
(1953) 2 All ER 753 applies to this instant case. The
facts which were the subject matter of the decision in
Fynn v Badu (1971) 1 GLR 80, a hire-purchase case based
on joint possession are different”.
My view of the law on
this subject under consideration is that where a person
owing property, sells it to another either on outright
payment or on credit, property in the subject is deemed
to have been transferred from the owner to the purchaser
upon delivery of the property to the buyer unless a
contrary intention is proved and intention in this
regard may be inferred from the conduct of the parties
before, at or subsequent to the transaction including
also all the surrounding circumstance of the case: see
Donkor v Alhassan (1987-88) 2 GLR 253 CA holding 4 which
states the law clearly as follows:
“Since there had been
full payment for an identifiable house and all that was
left was the execution of an instrument of transfer to
the respondent (buyer), provided there had been no
fraud, duress or unconscionability the court could
enforce the contract”.
This decision of the
Court of Appeal is in conformity with section 26 (2) of
the Sale of Goods Act 1962 (act 137) See Yirenkyi v
Termekpey (1987-88) 1 GLR 533 CA.
In the instant case,
there is no evidence of any intention on the part of the
1st and 2nd defendants from which it could be inferred
that the delivery of the Landrover was not the
conclusion of the transaction. The question of the
insurance policy being used as a basis for imposition of
vicarious liability is in my view totally untenable. I
concede the presumption that a person holding a policy
owns the vehicle so insured but this presumption is
rebuttable and sight must not be lost of the legal and
equitable principle that a purchaser of a property like
a motor vehicle acquires not only the vehicle but also
all relevant documents which by law must cover the
ownership of the vehicle. The reason underlying this
rule is that the purchaser becomes entitled to
everything about the vehicle including the certificate
of insurance if it is not expired. The policy becomes of
no use or benefit to the seller any longer. Where the
terms of the policy do not make it possible for the
purchaser to use it e.g. if it contains a named driver’s
clause, the purchaser would have to obtain his own
policy because the law imposes a sanction if he does not
do so and also he cannot be indemnified by the insurance
company in the event of an accident involving the
vehicle. In the instant case, as soon as the 1st
defendant surrendered to the 2nd defendant the vehicle
and its documents including the insurance policy,
everything became a fait accompli. The 1st defendant
literally in law washed his hands completely off the
vehicle. The legal position was that from the time the
vehicle was delivered to the 2nd defendant he became the
owner. For section 1 of the Road Traffic ordinance No.
52 of 1952 provides as follows:
“Owner means the person
by whom the vehicle is kept and used and, in relation to
a vehicle which is subject to hiring agreement, or hire
purchase agreement, means the person keeping and using
the vehicle under that agreement and the expression
ownership shall be construed accordingly”.
I must say that so far
my research into the case law on road traffic
legislation throughout our law reports did not reveal to
me a case in which section 1 of the Road Traffic
Ordinance has been judicially considered. Now that it
has come to my notice, I wish to state the legal
position as best I can. Under and by virtue of section
(1) of the Road Traffic Ordinance (No. 52 of 1952) the
status of any person who keeps and uses any vehicle
under any agreement, whether of sale upon outright
payment or on credit or under a hire-purchase agreement
and, if I may add, even under what is commonly known as
work and pay, is that he is the owner of the vehicle for
all practical purposes. It follows in my judgment, that
it would be totally wrong to hold that the 1st
defendant, is the owner of the vehicle because the
insurance policy on the vehicle or its registration is
in its name. Therefore when the question of negligence
arises in the use of the vehicle any person who suffers
any damage shall have no cause of action against the
original owner. The person who keeps and uses the
vehicle is the person to deal with in all claims of this
nature. There is therefore in my view no need for any
further legislation on the subject as it was advocated
by their lordships in the case of Fynn v Badu (supra).
The legislature has done its duty already and it is up
to the courts to enforce the law. Perhaps, it may be
necessary to say something about insurance policy. In
his book “Slater’s Mercantile Law” 5th Edition page 301
the learned author defines insurance as follows:
“Insurance is the
purchase of security.
The assured, anxious to
protect himself against a risk purchases from the
insurer the right to be indemnified if the risk should
materialize. The purchase price which the assured pays
the insurer is known as the premium, often an annual
payment and the insurer’s promise to pay if the event
insured against occurs is embodied in what is called a
policy”.
And section 59 of our
Insurance Act 1965 (act 288) defines a policy as:
“Policy includes every
writing whereby any contract of insurance is made or
agreed to be made.”
The Court of Appeal in
the case of White Cross Insurance v Northern
Construction Co. 28 July, 1969, unreported, digested in
1969 Current Cases, paragraph 146 (Ollenu, Apaloo And
Lassey JJA as they then were) held (holding (1) as
follows:-
“Held allowing the
appeal: An insurance policy is a contract of personal
indemnity and the insurers cannot be compelled to accept
responsibility in respect of a third party who is quite
unknown to them or who they could not be prepared for
good reason to indemnify”.
Accordingly, Abban J
(as he then was) in the case of Royal exchange Assurance
v Tailor (1973) 1 GLR 226 applying the Court of Appeal
decision cited above held at page 227.
“Held (1) Where the
sale of a vehicle by a policy-holder was an outright one
the policy-holder could not have any insurable interest
in the vehicle after the sale; the policy covering the
vehicle would be held to have lapsed even if the
policy-holder had transferred or assigned it to the
purchaser:
White Cross Insurance v
Northern Construction Co. Court of Appeal 28 July 1969
unreported; digested in 1969 C.C. 146 cited”.
The argument by learned
Counsel for the plaintiff relying on the English case of
Sefton v Tophms Ltd & Anor (1965) 3 WLR 525 CA that the
1st defendant still retained an insurable interest in
the vehicle at the time of the accident does not find
favour with local decisions on the subject. In that case
the plaintiff who had insurable interest in a property
claimed for an injunction to restrain the defendant from
breaking a covenant affecting the property. Clearly the
facts are inapplicable to the instant case. The
essential characteristic of an insurance is that it is a
contract between the assured and the insurer.
Quintessentially, it is operated within the rubric of
the law of contract as distinguished from vicarious
liability which is an element of the law of torts. If an
insurance company is called upon to satisfy a liability
arising from a road traffic accident whether due to
negligence or not, the liability is imposed upon him by
the terms of the policy of insurance he has contracted,
not in any way based upon the liability which a master
may owe to his servant or an employer may owe to his
employee by the law of vicarious liability. The learned
trial, therefore, fell into serious error because of his
failure to appreciate the essential characteristics of
ownership under the common law, ownership under our road
traffic laws and, more importantly, the relationship
between ownership of a motor vehicle and policy of
insurance covering it vis- a-vis negligence and
vicarious liability in the law of torts. For the
foregoing reasons the ground of appeal on vicarious
liability succeeds. The next phase of the case is the
issue of whether the 2nd defendant was negligent. Right
from the onset, the mere occurrence of a collision
between two vehicles operates as a prima facie case or
presumptive evidence in favour of the plaintiff against
the two drivers each of whom has the burden of rebutting
the presumption. The 2nd defendant had the burden of
producing evidence which on the balance of the
probabilities should exonerate him from blame. On the
degree of proof by preponderance of probabilities see
the recent Supreme Court decision in Adwubeng v Domfeh
(1996-97) SCGLR 660 at 662 (holding 4 on the
interpretation of section 11 (4) & (12) of the Evidence
Degree 1975 (NRCD 323). Justice S. A. Brobbey put the
principle in its full perspective at page 322 of his
book. “Practice And Procedure In The Courts” 1st edition
as follows:—
“The onus of proof on a
party in a civil case is however less than that on the
prosecution in a criminal case, it being on a balance of
probabilities only: see Serwah v Kesse (1960) GLR 277 at
228, S.C. NRCD 323 provides further that the burden of
persuasion requires proof by “preponderance of
probabilities” which is defined in section 12(2) to mean
“that degree of certainty of belief in the mind of the
tribunal of fact or the court by which it is convinced
that the existence of a fact is more probable than its
non-existence”. The burden of proof may shift from the
plaintiff to the defendant or vice versa and this is
clearly covered by NRCD 323, S14”.
In order to determine
whether the 2nd defendant has discharged the burden of
persuasion, the trial court was under a duty to apply
the judicial process which requires him to evaluate the
totality of the evidence adduced by or behalf of the
rival parties. First the police report. Did the trial
judge apply the judicial approach to evaluate it and to
assess its probative value?
I am afraid he failed
totally in his appraisal of the said report. His
greatest fault was that he was unable to detect that the
policeman who prepared it was biased in favour of the
plaintiff to the prejudice of the 2nd defendant. In
preparing the facts of an accident the police must
incorporate in a nutshell the issues raised by the
police statements made by all persons who in law are
potential witnesses at the trial. In his report, the
police officer completely suppressed the substance of
the statements made by four persons who were on the 2nd
defendant’s vehicle, all of whom stated that they saw an
articulator in the lane of the 2nd defendant and never
made mention of overtaking of any vehicle leading the
2nd defendant. Even the plaintiff never said so in her
statement to the police, but the police officer
introduced his own facts into the report that the 2nd
defendant was overtaking an unidentified vehicle and in
the process collided with the on-coming articulator
truck. Either by coincidence or design, the plaintiff
introduced that fact about overtaking in her evidence in
court. The rule of evidence is that where the evidence
of a witness in court conflicts with an earlier
extra-judicial statement, a court ought not treat such
witness as credible see Adwubeng v Donfeh (1996-97)
SCGLR 660. In support of Adwubeng v Donfeh there is the
oft-quoted dictum of Osei-Hwere J (as he then was) in
Yaro v The Republic (1979) GLR 10 at 17 where he said:
“A previous statement
made by a witness to the police which was in distinct
conflict with his evidence on oath was always admissible
to discredit or contradict him see Poku v The State
(1966) GLR 262 SC. Where, therefore a witness has made a
prior statement, either orally or in writing, which is
inconsistent with his evidence on oath then it will be
presumed against him that his evidence on oath is false,
unless he gives satisfactory explanation of the prior
inconsistent statement”.
At page 92 of the
“Commentary On The Evidence Decree, 1975 (NRCD 323) the
learned commentator states that “if the evidence of the
prior statement indicates special circumstances which
support its trustworthiness, then the trier of fact
should be able to consider the original statement as
evidence of the truth of the matter.” As Counsel for the
2nd defendant rightly pointed out, the learned trial
judge should have preferred the prior statement of the
plaintiff because she made that statement when the facts
were fresh in her mind. Therefore since in the earlier
statement the plaintiff made no mention of the 2nd
defendant overtaking a taxi the learned judge erred in
not so holding. The learned trial judge therefore ought
to have rejected the evidence given by the plaintiff in
court that the 2nd defendant’s vehicle was overtaking a
leading taxi when it collided with the articulator. In
this regard, I would embellish the submissions of
Counsel for the 2nd defendant where he said the
plaintiff could not corroborate herself by saying that
the plaintiff’s evidence was a fabrication made by
herself and it could not be corroborated by a police
report which was also fabricated. Counsel for the 1st
defendant submitted that the statement made by the four
relatives of the plaintiff were admissible under section
5 (2) (b) of the Evidence Decree 1975 (NRCD 323) because
they were admitted without objection. This submission is
right and that is the reason why I criticised the trial
judge for his failure to consider them. If he had
examined those statements, it would have dawned upon him
at all costs that the police report on the facts of the
accident was most unreliable. The probative value of any
evidence, oral or documentary, or real, including a
police report, depends on the weight which a court or
trier of fact would attach to it.
A police report is
essentially a conglomeration of information from various
sources as well as things seen by the reporter himself.
Facts contained in the report which are undisputed may
be accepted as admissions and accordingly as exceptions
to the hearsay rule. Others in controversy such as
conflicting stories of how an accident occurred must be
resolved by the court through the judicial process i.e.
by calling witnesses to testify in the witness stand and
subjecting them to cross-examination. Just as a police
officer fails in his duty if he presents as his report
one rival version to the exclusion the other, so does a
trial judge err if he accepts such one-sided report as
the whole truth? Counsel for the plaintiff submitted
that a police report is prepared after the police have
visited the scene of the accident and gathered facts
including a police sketch of distances and points. With
the greatest respect, there is no such evidence in the
instant case. There was no police sketch of the scene of
accident and so the court was left with only the oral
testimonies and the statements of the plaintiff’s
relatives. Having analysed all the evidence, I am
satisfied that the 2nd defendant’s story was more
probable than not and that he succeeded in discharging
the burden of persuasion. By way of emphasis, it must be
stated that in determining whether a party on whom the
burden of persuasion lies has discharged the duty cast
on him, his version or evidence must be considered on
the totality of the evidence adduced at the trial
whether from the evidence of his witnesses or of his
adversary. It is at this crucial stage of the judgment
that I feel called upon by the dictates of fair play and
justice to reassess the evidence of the plaintiff as
against that of the 2nd defendant and to evaluate their
relative strengths on the balancing scale. Earlier on I
stated by citing case law that a witness who creates a
conflict between his prior statement to the police and
his testimony in court was not to be treated as credible
and I demonstrated the areas where the plaintiff failed
this acid test. The 2nd defendant stood unscathed on
this score as there was no such conflict in his
evidence. Now, taking the most charitable view of the
situation, I resorted to the case of Obeng v. The
Republic (1972) 2 GLR CA where the court held that where
there is a conflict in the evidence of a witness but the
material part in issue is corroborated by other
independent parts of the evidence as a whole, a court
ought not reject the evidence of the witness and treat
him as an untruthful witness. Unfortunately for the
plaintiff in the instant case, no such corroborative
evidence was available, such corroborative evidence as
there was, namely the statements of the other passengers
on the vehicle favoured the 2nd defendant. In the light
of this I find that upon the proven facts, the 2nd
defendant’s version of the accident was more probable
than not and consequently there would be a finding that
he was not negligent. The simple reason is that the
articulator driver created a dangerous situation on the
road which made the 2nd defendant unable to avoid the
collision. There is a defence of inevitable accident but
the court would prefer to say that there was no case of
negligence. As it is stated at page 28 of the famous
book “Salmond On Torts”
12th edition:
“The plea of inevitable
accident is that the consequences complained of as a
wrong were not intended by the defendant and could not
have been forseen and avoided by the exercise of
reasonable care and skill.”
A local case in point
is Nelson v Klutse and Anor, Court of Appeal,
unreported, dated 8 September, 1969 digested in 1969
current cases paragraph 142 (Full Bench of the former
Court of Appeal in a review case) where a defendant was
exonerated because his vehicle was violently hit by a
heavy truck in his lane. Amissah JA (as he then was) in
a learned dictum stated as follows at page 236 of the
volume:—
“We do not accept that
in an emergency the acts and omissions of a person must
be considered within the context of the circumstances in
which he finds himself. The yardstick by which his
conduct must be measured will not be that of a
reasonable and prudent man in ordinary circumstances.”
To my mind, looking at
the performance of the 2nd defendant within the context
of the emergency in which he found himself, unexpectedly
seeing an articulator suddenly and menacingly moving
into his lane of traffic, he must be commended for his
extraordinary courage in swerving the Landrover into the
space left by the articulator to avoid head-on
collision. But for this hilarious feat by the 2nd
defendant, the fatality toll of the accident might well
have risen above only one. In the result the appeals
filed the 1st defendant is allowed and so is that of the
2nd defendant. The judgment of the court below is hereby
set aside. In lieu thereof there shall be a judgment
dismissing the plaintiff’s claim against the two
defendants. I note that the 2nd defendant’s counterclaim
has been abandoned and is struck out.
P. K. TWUMASI
JUSTICE OF APPEAL
ARYEETEY, JA:
I agree.
B. T. ARYEETEY
JUSTICE OF APPEAL
GBADEGBE, JA:
I also agree.
N. S. GBADEGBE
JUSTICE OF APPEAL |
