Division: IN THE SUPREME COURT
Date: 29 FEBRUARY 1964
Before: ADUMUA-BOSSMAN AND MILLS-ODOI JJSC AND APALOO J
JUDGMENT OF MILLS-ODOI JSC
The plaintiff-respondent (hereinafter referred to as the respondent) brought an action against Larbi Armah (hereinafter referred to as the defendant) and Amartey Laryea (hereinafter referred to as the appellant) jointly and severally claiming the sum of £6,000 damages for personal injuries caused to him by the negligent acts of the defendant who was alleged to have been at the time a servant of the appellant, and for whose negligence the appellant is said to be liable. The facts of this case are set out briefly by the learned trial judge in his judgment. They are as follows:
“By his statement of claim the plaintiff avers that on 21 January 1962, he travelled as a passenger in vehicle No. AG. 6489 belonging to the second defendant and driven by the first defendant, and upon reaching a point between miles 11 and 12 on the Winneba-Accra road the said vehicle was so managed and controlled by the first defendant that it hit a stationary vehicle No. AG. 4991 whereby he sustained several personal injuries which have rendered him disabled and whereby he has suffered damage and loss. The second defendant admits that he is the owner of the vehicle No. AG. 6489 which was involved in the accident, but denies that the first defendant has ever been or was at the material date of the accident his driver and servant.”
The appellant maintained throughout the proceedings that one Clement Kwaku Larbi was the driver employed by him at the date of purchase of vehicle No. AG 6489 and he alone had been in charge of it from that date. He therefore denied liability on the ground that there had never been any contract of service between him and the defendant. The defendant was served with a copy of the writ of summons along with a copy of the statement of claim but he did not enter an appearance or file any defence and, before trial of the action, the respondent obtained an interlocutory judgment against him on his claim. The respondent also sought to fix the appellant with liability, for as is usual in such cases, the defendant, a driver, is probably a man of straw against whom a judgment in damages is worthless. The issue of negligence in so far as the defendant is concerned was therefore not in dispute. The main issues or questions of fact that fell for the determination of the learned trial judge were whether the appellant was liable for the negligent acts of the defendant and, if conclusively established by evidence that he was, the quantum of damage.
The averments made by the respondent in his pleadings and the evidence which he adduced at the trial were directed mainly to establish that the appellant was the owner of the vehicle that was used in causing the injuries and that the defendant was the driver of the said vehicle at the crucial time. His evidence tending to establish liability in the appellant was contained in the following passage:
“On 21 January 1962 I travelled as a passenger in Bedford Lorry No. AG. 6489. I boarded the lorry at Tema and I travelled in it to a village called Niyema near Swedru. I went there with others to witness a football match. I returned by the same vehicle from Niyema village which was to take me and the others back to Tema. The driver of the said lorry was one Larbi Armah. I have made investigations and I have got to know that the vehicle No. AG. 6489 has been registered in the name of the second defendant herein Amartey Laryea. The lorry in which I travelled was driven by the first defendant.”
Under cross-examination he said he did not know who had been driving the appellant’s vehicle prior to the date of the accident. His evidence merely established ownership of vehicle No. AG 6489, a matter which was not in dispute. It also identified the defendant as the person who drove the said vehicle along the Winneba-Accra road on the day in question. The only witness called by the respondent to corroborate his evidence in fixing the appellant with liability was an inspector of the Ghana Police Force stationed at New Tema. His evidence tended to establish that the defendant was the driver of the Bedford lorry No. AG 6489 long before the date of the accident and that he had travelled on it several times in Tema prior to that date. At the trial he deposed, inter alia, as follows:
“This vehicle plys from Tema and I have been joining it several times from New Tema to the main Tema town when I attend court. I know the driver of this truck No. AG. 6489. He is called Larbi Armah popularly known at Koogbe. To my knowledge he is a licensed driver. To the best of my knowledge his driving licence is No. 65666 issued to him in Accra on 21 April 1961 . . . This Larbi Armah was the driver of this truck. He is the driver who drove vehicle No. AG. 6489 which was involved in that accident. Larbi Armah is no more driving that truck . . . I know a man called Clement Mama. He is the owner of vehicle No. AG. 6489.”
It is abundantly clear from the respondent’s evidence and that of his witness that the respondent sought to make the appellant liable for the negligence of the defendant merely because the appellant was the owner of vehicle No. AG 6489 and because the defendant was, as alleged by them, the driver of the said vehicle some time before and at the date of accident. He did not adduce any evidence to establish the relationship between the defendant and the appellant.
The appellant maintained throughout the trial that there had never been any contract of service between him and the defendant. In other words, the defendant had never been his driver and servant. He claimed ownership of vehicle No. AG 6489 which he purchased from one Mr. Kalmoni some time in 1960 and urged vehemently that Clement Kwaku Larbi, whom he called as his third witness, had been the sole driver of the said vehicle from the date of purchase and during the trial of this action. His evidence was as follows:
“Subsequent to the accident my driver Clement Kwaku Larbi told me that at the time that the accident occurred, he was not the one driving the vehicle. He never told me at any time before the accident that he had a second driver with him. I never at any time authorised Clement Kwaku Larbi to engage the services of any other driver to drive this vehicle. He never informed me that he had help-mates with him.”
This piece of evidence was corroborated by Clement Kwaku Larbi, who admitted to being the driver of the Bedford lorry No. AG 6489 from the time it was bought by the appellant in 1960 and to being still in charge of it during the trial of this action. He described the respondent and the defendant as his mates and said that on 21 January 1961 (a Sunday) he gave the vehicle “to Larbi Armah the first defendant in this case to go and wash it”; and the respondent was to assist him. He did not at any time inform the appellant that he had taken the respondent and the defendant as his lorry mates. He was paid £G8 by the appellant at the end of every month but his mates were not paid any money by the appellant because the appellant had not employed them as such nor was he aware of any service which they were rendering for him. A
day after the accident Larbi saw the defendant in the latter’s mother’s house and in answer to a query as to who authorised him to take away the vehicle he said: “Whilst I was washing the lorry the football team pproached me and requested me to take them to Nyinyina and I agreed to do so.” In order to establish the fact that the first defendant and the respondent were at one time the lorry mates of Larbi, the appellant called as his witness the chief driver in charge of lorry drivers at Tema, who gave evidence of an apprenticeship ceremony performed by Larbi on behalf of the respondent on 12 August 1961 which he attended. The chief driver said he was also present when the defendant was apprenticed to Larbi.
On the issue of liability of the appellant for the negligence of the defendant the learned trial judge held that, “the first defendant was at all times material to this case the driver and servant of the second defendant driving for his vehicle No. AG 6489, and that the mass of evidence put forward by the defence is faked and made up for the purpose of defeating the plaintiff’s case. “The issue of quantum of damage depended on whether the appellant was liable for the negligent acts of the defendant and the learned trial judge, having fixed the appellant with liability, therefore proceeded to deal with the quantum of damages and gave judgment for the respondent against the defendant and the appellant jointly and severally for the sum of £G3,800 with 400 guineas costs. It is from that judgment that the appellant has appealed to this court.
In the notice of appeal no less than three grounds of appeal were filed. At the hearing of the appeal learned counsel for the appellant was given leave to argue three additional grounds of appeal. However, he only argued the appeal on the original three grounds filed, the other grounds for which leave was granted having been abandoned. In arguing together grounds (1) and (2) of the grounds of appeal, namely
that:
“The learned judge misdirected himself or was wrong in law in holding that the first defendant was the servant or agent of the second defendant. There was no evidence that at the time and place of the accident the first defendant was in the second defendant’s business and with the knowledge and consent of the second defendant went to discharge his duties either expressly or impliedly in the court of his employment,” learned counsel for appellant, Mr. Arthur, submitted that the respondent in his statement of claim did not plead any fact showing the relationship between him and the appellant nor was any averment made therein that the defendant was at the material time acting in the course of his employment by the appellant. Had this defect not been regularised in the pleadings the omission complained of would have caused grave harm to the respondent’s case as “it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they will have to meet when the case comes on for trial,” per Cotton L.J. in Philipps v. Philipps1. Mr. Arthur further submitted that in spite of the omission, the appellant in his pleadings denied that the defendant was his servant and was at all times materials to this action acting with his authority; but the respondent did not make any replication.
I am satisfied, after a careful examination of the record, that the respondent filed a reply to the appellant’s statement of defence in which he averred, “that first defendant is a driver and the servant of the second defendant and was driving the said lorry No. AG 6489 with the knowledge and consent of the second defendant.” I do not therefore accept learned counsel’s argument that no replication was made by the respondent. The defect complained of in the
statement of claim was also cured by the replication.
Learned counsel for the appellant submitted with considerable force that the evidence of the respondent and his witnesses did not tend to establish any liability in the appellant. He further urged that as the defendant did not appear in the proceedings to admit that he was employed by the appellant there was no evidence on which the learned trial judge could rely and come to the conclusion that the defendant was the driver and servant of the appellant.
The general principle of law in cases of this nature is that a master is not responsible for a wrongful act done by his servant unless it is done in the course of his employment, and it is deemed to be so done if it is either a wrongful act authorised by the master or a wrongful and unauthorised mode of doing some act authorised by the master: see Ansah v. Boye2. In order to succeed in this action, and for the purpose of this appeal, the plaintiff must prove (a) that the defendant was the servant of the appellant, (b) that that relationship of master and servant subsisted at the time of the accident and (c) that the defendant was at that time acting in the course of his employment as the servant of the appellant. In considering whether the defendant was the servant of the appellant it is necessary to ask, who is a servant? The answer is given
in Salmond on Torts (11th ed.) at p. 97 as:
“A servant may be defined as any person employed by another to do work for him on the terms that he, the servant, is to be subject to the control and directions of his employer in respect of the manner in which his work is to be done.”
Mackinnon L.J. in Hewitt v. Bonvin3, said that this definition can “hardly be bettered.” To constitute that relationship of master and servant for this purpose there is no necessity for any consideration of service. The test whether a person stands to another in the relation of master to servant is whether he had the power of controlling his acts and dismissing him for disobedience of orders. The person responsible as master is the person who has the right at the moment to control the doing of the act: See Clerk & Lindsell on Torts (11th ed.) at pp. 118 and 119. Applying the test to the instant case, the respondent must have led evidence to establish conclusively that the defendant carried out the orders of the appellant and that the latter reserved to himself the power of dismissing the former for disobedience. The defendant took no part in the proceedings to enable him to admit or deny the fact that the appellant exercised any power of control over him. The case put forward by the respondent merely showed that that appellant was the owner of vehicle No. AG 6489 and that the defendant was the driver of the said vehicle some time before and at the time of the accident. The evidence therefore failed to established any relationship between the defendant and the appellant much less to prove or even suggest that the appellant exercised any power of control over the former at the material time. However, the learned trial judge held that the defendant was the servant of the appellant. His reason for arriving at that conclusion is stated in a passage of his judgment which reads as
follows:
“In order to establish that the first defendant was the driver and servant of the second defendant, the plaintiff apart from giving evidence of his own knowledge that the first defendant was the driver of vehicle No. AG. 6489, called an inspector of police in charge of the Tema Police Station whose evidence which I accept is to the effect that he has himself travelled on this vehicle No. AG. 6489 on several occasions prior to the date of the accident, and that on those occasions the said vehicle was driven by the first defendant Kwaku Larbi whom he knew very well . . . I find on the whole of the evidence that the first defendant was at all times material to this case the driver and servant of the second defendant driving for him vehicle No. AG. 6489.”
It would seem that the learned trial judge did not give due consideration to the essential elements which must exist to constitute the relationship of master and servant, namely, whether the appellant exercised any power of control over the acts of the defendant and of dismissal for disobedience. He failed to apply the correct test to enable him to arrive at a proper conclusion that the defendant was the driver and servant of the appellant. I am therefore unable to accept his finding that the relationship of master and servant was established merely because the defendant was the driver of vehicle No. AG 6489 at the time he was seen driving the said vehicle.
Assuming that the learned judge was right in holding that the relationship of master and servant had been established between the appellant and the defendant he was still wrong in fixing liability with the appellant in the absence of evidence to establish conclusively that the defendant was at the date of the accident acting in the course of his employment. No averment was made by the respondent in his pleadings nor was any evidence adduced by him and his witnesses to establish that the defendant drove the vehicle No. AG 6489 on 21 January 1962 in the course of his employment as the servant of the appellant. The issue or question of fact which the learned judge set out in the judgment for his consideration also fell far short of the essential ingredient which must be conclusively established in order to fix liability with the appellant, namely, that the defendant was at the time acting in the course of his employment. The passage in the judgment reads as follows:
“The issue of negligence not being in dispute, the question that I now have to decide is whether or not the first defendant was at the time of the accident the driver and servant of the second defendant, and if proved that he was, the question of quantum of damage.”
To render the master liable, however, for the servant’s misconduct, it is not enough that the misconduct should have occurred in the course of doing an act of a kind which the servant was usually authorised to do, unless at the time the servant was engaged on the master’s business and not merely on his own: see Clerk & Lindsell on Torts (11th ed.) at p. 131.
In Mitchell v. Crassweller4, a cartman after having finished his day’s work, and before shutting up his master’s horse and cart for the night, started off with it without the master’s knowledge on business of his own, and in the course of his journey negligently drive over the plaintiff; the master was held not liable.
In Beard v. London General Omnibus Co.5, the conductor of an omnibus belonging to the defendants, in the absence of the driver, and apparently for the purpose of turning the omnibus in the right direction for the next journey, drove it through some side streets, at a considerable pace, and while so doing negligently ran into and injured the plaintiff who gave no evidence at the trial that the conductor was authorised by the defendants to drive the omnibus in the absence of the driver. It was held that the plaintiff had not discharged himself from the burden cast upon him of showing that the injury was due to the negligence of a servant of the defendants acting within the scope of his employment, and defendants were entitled to judgment.
In Sanderson v. Collins6, a case of bailment, the defendant was lent a carriage by the plaintiff while his own was being repaired by the latter. The defendant’s coachman, without the defendant’s knowledge, took the plaintiff’s carriage out for his own purposes and negligently damaged it. It was held that at the time of the damage the coachman was not acting in the course of the defendant’s employment.
The crux of this case is that the respondent should not only establish that the defendant was his driver and servant but, more important, that he was at the time of the accident, acting in the course of his employment. And these he hopelessly failed to establish.
Learned counsel for the appellant finally submitted that “the judgment is against the weight of the evidence.” In view of the conclusions I have arrived at it would be idle to expatiate on this submission, more especially as learned counsel for the respondent stated that he was unable to support the judgment for his client.
In the result I would allow the appeal, set aside the judgment appealed against and enter judgment for the appellant dismissing the respondent’s claim.
JUDGMENT OF EDUMUA-BOSSMAN J.
I agree.
JUDGMENT OF APALOO J.
I also agree.
DECISION
Appeal allowed.
T. G. K.
