WOLEDZI v. AKUFO-ADDO and Another (II)

WOLEDZI v. AKUFO-ADDO and Another HIGH COURT, ACCRA 20 March 1980

CECILIA KORANTENG-ADDOW J.

This is Part 3 of Akufo-Addo’s inhumanity to man.

Nana Akufo-Addo was defended in this action by James Amoako-Glover, a lawyer in Nana Akufo-Addo’s Law Chambers at the time and a one-time SRC President of the University of Ghana, Legon, who was always associated with drugs and who has since become a mental case. He still walks the streets of Accra.

Now read on——-

Mr. Atadika, counsel for the plaintiff, has urged the court to accept the spot stained with a pool of blood as the place where contact of the two cars occurred and to accept that the blood was the plaintiff’s. Where there is an accident, resulting in casualty of the passengers or driver, and blood is found at the scene, I think there is sufficient basis to make the inference that the blood spilt on the road or scene of accident must have been spilt by the person who was injured in the accident. There were only the two drivers in the two cars. The first defendant had no external injury or any injury at all. But there is evidence that the plaintiff had very serious head injuries and fracture of the left arm. Therefore blood on the ground at the scene may reasonably be said to be that of the plaintiff.

There is no evidence to explain how the blood came to be where it was found on the road. Mr. Atadika urged the court to find that the plaintiff was hit where the blood was. Mr. Amoako-Glover has made a number of suggestions.

One of them is that the plaintiff must have been jammed behind his steering wheel and that blood seeped onto the road from his car. He also suggests that the plaintiff must have been laid on the spot of the pool of blood after he had been taken from his car. My mind about the matter is that all these suggestions cannot be inferences from the evidence. They are mere conjectures, they are mere guess work. There are no objective facts from which to infer how the pool of blood came on the spot marked on the plan. On conjecture refer to Nyame v. Tarzan Transport (supra) and the reference to English cases made in that case.

Be it as it may, I do not think that the pool of blood shows the correct point of impact. From the plaintiff’s own evidence the point of impact could not have been at the point indicated on the sketch. The debris which drops from vehicles which come into violent contact with each other does not drop down away from the point of impact. Commonsense and experience would dictate that the debris would start dropping from the very moment the contact is made. Therefore the most likely place where the two vehicles could have come into contact with each other would be the spot where it is marked “broken glass on the plan.” This is also inside the inner track, and not on the verge or island. The positions of the cars as shown are entirely within the inner track (facing Liberation Circle and driving left at the time). No part of the plaintiff’s car was on the verge. It is most unlikely that the defendant’s car entered the island and dragged the plaintiff’s car onto the road.

The plaintiff’s evidence that he parked on the island or partly on the verge and partly on the road is not probable. At the time of the accident, his car was all in the inner track of the dual-carriage. I think that this is what has been inconsistent in the various pieces of evidence he has given of the matter. Mr. Atadika has urged the court to amend the plaintiff’s pleadings to accord with the evidence, should the court find that the plaintiff did not park on the island but on the road. He submitted that such an amendment will not embarrass the defendant because they have contested the case on both fronts, i.e either that the plaintiff was on the verge or in the road. He said if in spite of the divergence in the plaintiff’s story the accident happened in circumstances which make the defendant negligent, then the court would do justice in the matter if it amended the pleadings and found the defendant liable.

The submission is ingenious but will not hold in this case. The rule of procedure regarding amendment of this nature, as I know it, is that the court may allow an amendment of pleading in appropriate cases so as to bring the pleading in line with the evidence led by the party seeking the amendment. But the court need not amend the pleadings of a party in a suit so as to bring those pleadings in line with the inference drawn by the court from the evidence as a whole. Such an amendment becomes necessary when there is a variance between the statement of claim and the evidence given at the trial. An amendment of this nature does not become necessary because other evidence in the matter shows that the plaintiff’s evidence is incorrect or inaccurate.

If the plaintiff’s car was not parked, as he maintains, but on the road, will the first defendant still be held to be negligent in running into the rear? It has not been challenged that the first defendant hit the rear of the plaintiff’s car, but there is an acute conflict of evidence as to whether the plaintiff’s car was stationary or in motion. Negligence as it is said, is a question of fact. There is no rule of law which makes any particular conduct of the motorist a negligent act. The test is whether the particular conduct which calls for inquiry measures with the conduct of a reasonable prudent man placed in the same circumstances. However, negligence may be interred from certain proved facts unless the contrary was proved.

Counsel for the plaintiff has submitted that where a moving vehicle hits a stationary one, there is a presumption of negligence on the part of the driver of the moving vehicle. He relied on Randall v. Tarrant [1955] 1 All E.R. 600. The facts of that case are that the plaintiff parked his car in a country lane, which was a public highway leading only to a farm. The lane where he parked was narrow. The defendant driving a tractor to which was attached a baley by articulator coupling came by and tried to pass the plaintiff’s stationary car. In doing so he damaged the plaintiff’s car. It was held on appeal that the defendant did not take all the careful steps which a reasonable man in those circumstances should have taken in the case. The English Court of Appeal did state generally at p. 603 per Sir Evershed M.R:

“Prima facie, given the circumstances of a stationary motor car on a highway and another car approaching with room to pass, the onus is on the driver of the moving vehicle, if an accident occurs, to show that “all possible care’ was taken.”

Counsel also referred to Mbadiwe v. Yaya (supra); Grunshie v. Yeboah [1967] G.L.R. 290 and Ivanov v. Speedy Travel and Tour Ltd. [1972] 2 G.L.R. 227. In Mbadiwe v. Yaya (supra) the plaintiff’s lorry was parked at night on the left side of the road. He put a lamp on the load. The defendants’ lorry hit it from behind. The court held that in circumstances like those, the accident raised a presumption of negligence against the defendants and the onus of proving otherwise was upon them. In Ivanov v. Speedy Travel and Tour Ltd. (supra) the second defendant knocked down a white man in broad daylight along a straight road, the Kinbu Road. The driver’s view was not in any way obscured; the plaintiff did not step into the road suddenly, yet the driver driving an ordinary private car, an Opel Kadett 1300, did not see him at all and knocked him down. On these facts, Abban J. commented at p. 232:

“To my mind, if on a clear day a driver, with good eyesight and with his view not in any way obscured, knocked down a pedestrian on a straight road without seeing the said pedestrian, then that is strong prima facie evidence that he was either not keeping a sufficient lookout or that he was driving too fast, having regard to the limited lookout that could be kept.”

These observations are true of any situation like the one he was presented with, but negligence is always a question of fact, not of law. If this matter were that simple, as those referred to, uncomplicated by the acute conflict, then the circumstances of the accident as recounted by the plaintiff would shift the burden on the defendants to disprove negligence. But the defendants deny the plaintiff was stationary. The first defendant insists that both of them were in motion and the plaintiff crossed his path in circumstances which made it impossible to avoid hitting him. The plaintiff on the other hand said he was stationary. The evidence of the parties is not corroborated by any other witness; there is only one oath against another. The only other piece of evidence independent of the parties is the sketch; but the person who went to the scene and made it did not give evidence. As was stated in Baiden v. Ansah (supra) at p. 413, by the Court of Appeal per Sowah J.A. (as he then was):

“In every collision case, the drivers involved often give very divergent accounts of how the accident happened, and the mere fact that both are eyewitnesses to the accident, does not stamp their evidence with the mark of truth. In such circumstances it is for the court to look at the independent pieces of evidence which would tilt the case one way or the other and in the absence of such evidence to come to the conclusion that both drivers were to blame: see Bray v. Palmer [1953] 1 W.L.R. 1445, C.A.”

Apart from the bare sketch in this case, there is no other independent evidence. Both parties rely heavily on the sketch, it must therefore be pitched against their respective stories and find out who is telling the truth, or whose story is probable. From the sketch the resultant positions of both vehicles were on the road with the defendant’s car attached to the rear of the plaintiff’s car. The plaintiff’s car is seen from the sketch to be standing very close to the verge, but it tilts, slightly slant-wise towards the centre of the inner track-road so that the front right tyre appears to be a few inches on the road away from the verge. The defendant’s car is entirely away from the verge, with the rear portion slanting towards the centre of the road, i.e. the inner lane. The debris is scattered along the right side of the resultant positions of the vehicles, from the rear portion of the plaintiff’s car, along the entire space between the defendant’s car and the island to what appears from my estimation and calculation from data given on the sketch, to be 3 ft. 9 ins. beyond the defendant’s car. This spot, i.e 3 ft. 9 ins, behind the defendant’s car, is where I find to be the probable point of impact. It follows that after the impact, the cars moved only 3 ft, 4 ins. This would not be possible if both vehicles were moving, with the defendant doing 40 m.p.h. to 45 m.p.h. But it would be possible to stop 3 ft.9 ins. after the impact if the obstacle the first defendant ran into was stationary; the force of impact would only push the obstacle, depending upon the speed of the moving car and the weight of the obstacle, ahead only a few paces. From the evidence, the plaintiff would be doing about the same speed as the first defendant. The first defendant said, “His (plaintiff’s) speed was not high enough to clear him from me.” If a moving vehicle collides into the rear of another moving one, both doing about 40 m.p.h, the vehicle cannot be brought to such an abrupt halt. In fact at that speed, and in such circumstances described by the defendant, it would be most likely that one or both vehicles would be thrown off the road. Considering all the circumstances of the case, the inference I make from the evidence is that vehicle No. SG 400, the plaintiff’s, was stationary, parked alongside the border of the island but it was on the road. I also find that the plaintiff was standing at the side of the car near the rear right wheel. It has been urged that if the plaintiff were standing at the back of the car, he would have been smashed to pulp in the collision. Dr. K.G. Korsah was asked of what would have happened to a person who was squeezed between the rear of the one car and the front of another. In view of the evidence before the court, this is a mere hypothesis. The plaintiff’s evidence was that he was kneeling by the right side of the car bending towards the car and removing the jack from under the car.

Under cross-examination he demonstrated his position and then said, “I was kneeling on the right knee with my head bending towards the jack I was removing”. In that position, he would be so close to his car that the force of impact resulting from the collision would bring him into violent contact with his own car and then the defendant’s. The type of injuries he received are consistent with this position. His head was likely to come into contact with his car as he was bending towards it. From the nature of damages recorded on the vehicles the force of impact must have been considerable. It was so great to have inflicted those injuries on the plaintiff. If the plaintiff were in the car, and the car was hit from behind, he could not possibly have sustained such severe injuries.