HIGH COURT, ACCRA 20 March 1980 CECILIA KORANTENG-ADDOW J.

Action by the plaintiff for damages for personal injuries and loss sustained by him as a result of an accident involving his car and a car driven by the first defendant. The facts are sufficiently set out in the judgement. Michael Atadika for the plaintiff.

Amoako-Glover for the defendants.

Cecilia Koranteng-Addow J. This is a case with a very checqered history, and it is a case which has been fought and defended with tooth and nail. The writ of summons was filed on 18 September 1967 and summons for directions was taken on 21 December 1967. Several factors have militated against the speedy disposal of the case. Hearing began on 21 March 1968 before Anterkyi J. He took two witnesses for the plaintiff and then after a number of adjournments, he decided not to hear the case and caused it to be placed before another judge. After several adjournments before another judge, the matter eventually came on for trial before Charles Crabbe J. (as he then was) and judgement was delivered on 15 January 1969. He dismissed the plaintiffs claim and the plaintiff appealed against the judgement. I am informed by Mr. Atadika, counsel for the plaintiff, who has been in the case throughout, and I read a note to this effect from the record of proceedings, that the record book containing the whole of the evidence taken by Charles Crabbe J. could not be traced. The result being that the record of proceedings presented at the Court of Appeal was not complete, it did not include the great bulk of the proceedings before Charles Crabbe J. It contained only his judgement. The Court of Appeal therefore did not hear the appeal, it ordered a re-trial. This is the judgement of the re-trial.

By his amended writ of summons, the plaintiff claims ¢100,000 damages for personal injuries and loss sustained by him as a result of the defendants’ negligence and breach of statutory duty. Originally, the writ was indorsed with ¢25,000 claim; later it was amended to read ¢50,000 and finally ¢100,000. The basis of the claim is that on 14 January 1967 the plaintiff was injured in an accident which occurred on the Ring Road involving the plaintiff’s car and the first defendant’s car. The circumstances of the accident are so much in dispute that it is necessary to reproduce the facts as recounted by each party.

The plaintiff’s version of how the accident happened, in his own words, is as follows:

“I was driving along the Ring Road and I was in the right lane near the island. I was moving towards the Police Headquarters. When I was almost opposite the UNESCO building, I had a burst tyre. It was the right back tyre. I stopped and parked the car on the island. In 1967 we were driving left, so I was driving on the side of the Mandarin Restaurant — I got out of the car, removed the spare tyre from the car, and took out the jack. I jacked the car, removed the punctured tyre and fixed the spare tyre. Then I started to remove the jack. When I was removing the jack, I heard the noise of an approaching car from behind me. Then I heard the impact; the vehicle hit me from behind. I did not know what happened again.”

(The emphasis is mine)

The plaintiff was driving an Oxford Morris car No. SG 400 which he had converted to a taxi. After the accident, the plaintiff was rendered unconscious and he remained in a deep coma for a period of three weeks at the hospital. On regaining consciousness, he learnt that the car which hit him was the first defendant’s car. He suffered head injuries with a “fracture of the right parietal and the petrons temporal bones of the skull extending down to the base.” As a result of the fractures of the skull and the contusion of the brain and its appendages, he suffered blindness in the right eye and deafness in the right ear. There is right facial palsy, left hemiplegia and slurred speech, He also had a fracture of the left ulna which would not heal, so it became necessary to operate him and insert a metal plating.

The first defendant conceded that he was driving in the same direction as the plaintiff, i.e from Danquah Circle towards the Liberation Circle, and he said the time was before 8 p.m. His evidence of the event was:

“My recollection of it was that prior to getting to the UNESCO building, I was driving in the inner lane. I was going almost abreast a taxi. There was also a car ahead of the taxi travelling in the same direction. I suddenly found the taxi swerve in front of me — The way I saw it, he was overtaking the car and he was going past me —:”

And after he had answered a question from his counsel indicating that he was travelling aThe manner in which he swerved in front of me, I had no option but to hit him— We had been driving from the Danquah Circle with the same speed and almost abreast. Then suddenly he swerved in front of me at the same speed. His speed was not high enough to clear him from me. I braked but it was not high enough to avoid collision. I remember I hit the right rear wing—The impact was in the lane closest to the island.”

This is the account given of the same incident. The two stories diverge widely. There is no other account given by anybody to help to tilt the scales one way or other. Each party was in his car alone and nobody saw the accident so far as the evidence goes. But a police officer tendered a sketch which was made of the scene of the accident soon afterwards. The policeman who took measurements could not be traced to give evidence. He was a constable class II called Henry Tetteh who had resigned from the Police Force. But his sketch has been tendered, and both parties rely on it. From these facts, the plaintiff in his statement of claim averred at paragraph 4 that the first defendant caused or permitted his car “to go onto the said verge of the laterite and there violently did collide with the rear of the plaintiff’s said motor car.” The usual details of the negligence were listed as particulars of negligence. The plaintiff maintains he was stationary when the defendant hit him, and his counsel has submitted that the accident raises a presumption of negligence against the first defendant. The defendants on the other hand denied the charges of negligence and pleaded that “the cause of the collision was due to the plaintiff suddenly and without due care and attention driving across the path of the first defendant.” The first defendant contends that both vehicles were in motion at the time of the collision, and as it was the plaintiff who crossed his (the first defendant’s) path, the plaintiff is the author of his own injuries. Negligence is a question of fact. The burden of proof is on the plaintiff to establish that the defendant’s negligence caused the accident. He must adduce evidence from which an inference can be drawn that the defendant was negligent. The evidence of the plaintiff in this case, if accepted, would raise a presumption of negligence.

The Ring Road is a well-known road in Accra. It is a dual-carriage way with a flower bed separating them. If a car was parked on the flower bed and another car came from behind and hit it, then the inference may be drawn from these facts that the driver of the car which hit the stationary car on the flower bed was negligent unless he explained his conduct. The defendant has explained his conduct, so it necessary to determine from the two divergent stories, how the accident occurred. Mr. Amoako-Glover, counsel for the defendants, has submitted that since the only evidence that the court has to draw inference from is an oath against another, the court must look at the demeanour and other matters which make the story of one or other probable. He relied on the inconsistencies in the plaintiff’s case, the medical evidence, the sketch, and for authority he referred to Baiden v. Ansah [1974] 2 G.L.R 407; Mbadiwe v. Yaya (1954) 14 W.A.C.A. 613 and Nyame v. Tarzan Transport [1973] I G.L.R. 8. That is the right approach to evaluate the evidence. On the demeanour of the parties, I must say that if that is the only criterion by which to decide the veracity of the parties, then I would say the defendant would win the day. But I must say great injustice would be done to the plaintiff if he is merely to be judged by his demeanour. Undoubtedly, the first defendant was very articulate in his evidence and much more impressive than the plaintiff in the manner by which he delivered his evidence. This is not surprising when it is considered that he is a lawyer of no mean standing. He is the offspring of a very sophisticated and well-to-do family. He was very articulate and very confident in himself and what he had to say.

He knew exactly how to deal with and treat every question from his own counsel or his opponent’s. On the other hand, the plaintiff has been so much deformed by the accident that he cannot see properly, the right eye is blind. In fact, he has squints; he does not appear to focus on you even when he is staring at you. He is deaf in the right ear so most of the time questions had to be repeated several times before he would hear what was said to him. He did not appear to have a very sharp intellect; on a number of occasions, questions from his own counsel had to be explained in various ways to get him to comprehend fully what was being put to him. He gave his evidence in English, and he was not very fluent in the English language; he was very limited in his choice of words. When all these matters are considered, it will be very difficult to determine whether the change in demeanour at any particular moment was attributable to difficulty in hearing or comprehending or of finding the right word or expression, or that it was induced by falsehood. Mr. Amoako-Glover’s argument has force and attraction, but more important, is to determine the probability of his story and not his comportment when he told the story.

Even though his disabilities have reduced his reactions and fluency, and he sometimes was hesitant in his answers to questions in examination-in-chief and cross-examination, the plaintiff generally impressed me as a truthful witness. I will at this stage examine the inconsistencies which counsel listed in his evidence. The occasion for these inconsistencies has been created by the history of this case and the path it has trodden upon.

The plaintiff has given evidence on three occasions in respect of this same matter. The first occasion was the trial for a motor offence preferred against the first defendant in respect of the same accident. The first defendant was tried before the Labadi District Court Grade 1 before his Worship Mr. Opare Addo, and was acquitted and discharged of the offences of careless driving and negligently causing harm. The record of proceedings was tendered in the case. Then the record of proceedings in the abortive trial before Charles Crabbe J. was also tendered. The proceedings of the abortive trial did not contain the evidence, but in his judgement, the learned judge quoted extensively from the evidence so that all the salient points on which counsel wanted to rely in respect of the plaintiff’s evidence were contained in the judgement. Counsel’s submissions on these previous proceedings are firstly, that they show inconsistencies in the evidence of the plaintiff so he cannot be a reliable witness and no reliance should be placed on his evidence. In respect of the proceedings before the district magistrate court, he referred to the evidence of the police constable, i.e Tetteh who investigated the motor offence aspect of the matter and made a sketch, and submitted that even though he could not be traced to give evidence, his evidence, as appearing in the record of proceedings, should be looked at in deciding what weight to give to the present evidence of the defendant. He said it is an exception to the hearsay rule because it is a statement made contemporaneous with the events giving rise to this action. He submitted that the rule in Hollington v. Hewthorn [1943] K.B 587, C.A. does not preclude the court from looking at Tetteh’s evidence. He finally submitted that Tetteh’s evidence forms part of the res gestae and it helps to determine what actually took place because he went to the scene and made a sketch.

Counsel dwelt at length on the contemporaneity of Tetteh’s evidence. A contemporaneous event is an event which originates, exists or happens during the same period of time as another or each other. This has been elaborated upon by the law into a term or art, meaning that which takes place at the same time as an event or immediately after the event, so that the two happenings or events may be regarded as having taken place at the same time. When a statement is made contemporaneously with the occurrence of an event into which the court is inquiring, such statement may be admitted in evidence because it throws light on the fact in issue by reason of proximity in time, or circumstances. As Cross expresses it in his invaluable book Cross on Evidence (3rd ed.) at p. 33, “A fact may be relevant to a fact in issue because it throws light on it by reason of proximity in time, place or circumstance.” Such an item of evidence which is relevant on account of its contemporaneity with matters under investigation is expressed as forming part of the res gestae. It is counsel for the defendant’s contention that the evidence of the police constable before the magistrate court that he investigated the case and made a plan is contemporaneous with the issue before this court, and that the issue is whether or not the first defendant drove without due care and attention. In Teper v. R. [1952] A.C. 480 at p. 488, P.C., Lord Normand said of res gestae:

“—the event with which the words sought to be proved must be so connected as to form part of the res gestae, is the commission of the crime itself, the throwing of the stone, the striking of the blow, the setting fire to the building or whatever the criminal act may be.”

It may be discerned from this dictum that for a statement to be admitted in evidence under this head, it must be contemporaneous with the event and it must directly concern the event in issue. Evidence that is given in a case of an investigation that took place soon before the trial can by no stretch of imagination be regarded as something that took place at the same time or contemporaneous with the event in respect of which the evidence was adduced. Generally, evidence in a previous trial cannot in law be used in a subsequent trial. Such evidence may fall within the hearsay rule or offend against the principle of relevancy. It may only be admitted when it falls within the exceptions allowed by law and for special purposes; for instance, when it may be admitted to test the credibility of a witness or contradict the evidence given in the present case. But proceedings in a previous trial cannot be used as evidence of the fact contained in the evidence at a subsequent trial. In Angu v. Attah (1916) P.C. ‘74-‘28, 43 at p. 47, P.C., Sir Arthur Channel explained: “—when a witness has sworn to certain matters in one action, the record of what he has so sworn cannot be used in another action as evidence of the facts which he has sworn to. This is so even when the second action is between the same parties as the first and a fortiori where it is not”.

The record of proceedings which was tendered in this case can have no probative value in resolving the issue of negligence in this case. Nevertheless, it was admissible to test the credibility of the plaintiff. With regards to the sketch which was tendered by another policeman who knew the signature of the constable who prepared it, both parties signed and they both agreed that it depicts correctly the scene of the accident as shown and described by them to the constable. The sketch therefore is primary evidence against both parties, and its probative value may be assessed along with the other evidence before the court. I must say that due to the unfortunate history of this case, the evaluation and assessment of the evidence before this court should be done without any gloss or interpolation from the decisions in the previous trials affecting this matter. The acquittal and discharge of the first defendant of the motor offences by the district magistrate and the dismissal of the plaintiff’s case by Charles Crabbe J in this court have no relevance to the evidence before the court. Even though in determining the credit-worthiness of the parties I shall refer to their evidence, the matter should be determined purely on the balance of probability of evidence before this court. I find it necessary to make this comment because of the insistence by the first defendant that he has won two of the three trials initiated as a result of the same incident, and that the district court and the High Court, differently constituted, preferred his story to the plaintiff’s.

First, the point of impact must be determined. The plaintiff said he stopped on the island. During cross-examination, he said he parked partly on the island and partly on the road. He elaborated on this when he said; “No. I did not park completely off the road. The right side of the car was off the road, the left side was on the road.” I understand this to mean that the right tyres were on the flower bed and the left ones on the road. In the statement of claim, paragraph 3, it was pleaded on his behalf that “the plaintiff thereby parked his said motor car off the road on the verge of the laterite and started fixing a spare tyre.” In the subsequent paragraph, it was averred that the first defendant permitted the car to go onto the verge of the laterite and there collided with the plaintiffs car. On the sketch of the locus in quo, exhibit H, which was tendered at the plaintiff’s instance, the point of impact is depicted on the road in the inner lane but near the island.

The debris, i.e broken glass, was found 25 ft. 3 ins. away from the alleged point of impact, and the resultant positions of the cars is 29 feet from the point of impact marked. The debris is shown around the spot where the resultant positions of the cars are marked. At the spot where the point of impact has been marked, is a red spot which, from the key to the plan, depicts a pool of blood. The plan was signed by both parties on 15 August 1967, eight months after the accident. The deputy superintendent of police who tendered the sketch had no personal knowledge of the circumstance whereby the parties came to sign the sketch or that the sketch was made. The plaintiff made no mention of the sketch. At the time he gave evidence, it had not been tendered so my mind was not drawn to it. However, when the first defendant gave evidence, I asked him whether both vehicles were at the scene when he went to the scene for the measurements to be taken.

This was his answer:

“I do not recollect that I went to the scene to take measurements. My recollection of the events is not very clear but I think the police brought me the sketch to sign if it coincided with the events.” He signed to the events as recorded in the plan so they must have coincided with his view of what took place. From the evidence, the plaintiff could not have been in a state to assist with the making of a sketch. He remained in a coma for three weeks subsequent to the accident, and he was in hospital for six months. The police officer who made the plan must have drawn it from his own view of the events as he found them at the scene but which was agreed upon by the parties later 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.