HIGH COURT, KUMASI
DATE: 19 NOVEMBER, 1962
BEFORE: APALOO, J.
CASE REFERRED TO
El-Rouh v. Hamil, High Court, Kumasi, May 11, 1962, unreported.
NATURE OF PROCEEDINGS
ACTION by the plaintiff on behalf of himself and the dependants of one Kwasi Menka deceased against the defendant for damages for causing the death of the said Menka by negligent driving. This report is not concerned with evidence relating to financial loss and the quantum of damages awarded.
In this respect, Apaloo, J. adopted the dicta of Lord Wright in Davies v. Powell Duffryn Associated Collieries (No.2) [1942] 1 A.C. 601 as he had previously done in Mensah v. Amakom Sawmill & Co. [1962] 1 G.L.R. 373 and Saunders v. Awudu [1962] 1 G.L.R. 472, and awarded £G1,600, based on a datum figure of £G171 multiplied by twelve years purchase taxed down by the “unforeseeable contingencies of life”.
COUNSEL
Ackun for D.S. Effah for the plaintiff.
Defendant in person.
JUDGMENT OF APALOO, J.
The facts of this case are entirely free from complexity. I find them to be as follows: The deceased was a farmer and was at the date of his death in his early forties. He was a food farmer on a fairly substantial scale. His wife was Abena Afra with whom he had six children. His wife [p.148] of [1962] 2 GLR 147 and children survived him. The defendant is a chief of Ejura and owned, at any rate in July 1961, a private car. Although he said he knew how to drive, he was at the said date unlicensed. The number of the car is given as AN 4251.
About 5 p.m. on the 26th July, 1961, the defendant backed his car in an open space speedily and without looking back. In so doing, he knocked down the deceased who was walking towards the rear of the car. The deceased sustained injuries and died on the way to hospital. I feel no doubt whatsoever that the defendant was negligent and that his negligence resulted in the death of the deceased. It was pleaded in the statement of defence that the deceased was guilty of contributory negligence. No evidence was led in support of this averment which was traversed. I find no evidence of contributory negligence on the part of the deceased. I hold that the defendant was solely to blame for the accident.
There is some dispute as to the status of the plaintiff. On the whole, I prefer the evidence that the plaintiff is the successor of the deceased and was so appointed by his elder brother Kwasi Anomako who is the head of the family. The plaintiff is entitled in accordance with custom to be appointed to step into his brother’s shoes. He was clearly the obvious choice. I am satisfied the plaintiff has a locus standi in this action, he being the customary successor of the late Kwasi Menka.
The plaintiff’s claim is on two limbs. The first claim is for the benefit of the estate, the second is on behalf of the dependants of the deceased who have lost the breadwinner of the family. The first limb of the claim is based on the common law, the second on the Fatal Accidents Act, 1846,1(1) as amended by the Law Reform (Civil Wrongs) Act, 1959.2(2) In the absence of any legislation in Ghana analogous or equivalent to the English Law reform (Miscellaneous Provisions) Act, 1934,3(3) the first limb of the claim is not maintainable in this country. Such action is barred by the actio personalis moritur cum persona rule. I so held in the case of El-Rouh v. Hamil.4(4) The action founded on the Fatal Accidents Act is maintainable in so far as it can be established that any relatives or near relatives of the deceased have been deprived of their breadwinner or of partial means of support by the death of Kwasi Menka.
It was pleaded in the statement of defence that this matter has been settled at an arbitration at which Anomako the head of the family agreed to forego the civil rights of the deceased’s estate against the defendant, and the latter in his turn agreed to refund to the deceased’s estate the funeral expenses which were incurred. Accordingly, it was pleaded that the plaintiff was estopped by the settlement reached at this arbitration from proceeding with the present action. I find it established on the evidence that at the behest of Kwasi Anomako, the district commissioner for Mampong settled a matter resulting from the death of the deceased between the said Anomako and the defendant, in consideration of which the defendant agreed to pay and in fact paid £G100 to Anomako and also agreed to be responsible for the expenses incurred on the deceased’s funeral. Such settlement has clearly nothing to do with the dependants of the deceased who were neither consulted nor represented at the so-called [p.149] of [1962] 2 GLR 147 arbitration. The right of the dependants is conferred by statute and it is not suggested that their rights can in any way be compromised by what took place before the district commissioner. In any judgment, that is the all-sufficient answer to any question of estoppel. I hold that in so far as the second limb of the claim in this case seeks to recover damages against the defendant on behalf of the dependants of the late Kwasi Menka, no question of estoppel arises.
It is claimed in this case that in addition to his wife Abena Afra and their six children, the deceased was also responsible for three of his nephews. This may well be so, but I regret to have to come to the conclusion that this has not been established. None of these nephews gave evidence and the claim that they were dependent on the deceased depends on the unsupported evidence of the plaintiff alone. I find it proved that at the time of his death Abena Afra and five of her children were solely dependent on the deceased. The deceased’s eldest daughter Adjoa Fosua was married and was thus emancipated from parental dominion. Since the deceased’s death, his second daughter Yaa Amankwa has also married and cannot claim to be entitled to any support save from her husband. The plaintiff also testified that the deceased sometimes advanced him moneys. I am not impressed by that bare assertion. Accordingly, the only persons who are entitled to the benefit of any judgment I will give in this case are Abena Afra and her children save and except Adjoa Fosua and Yaa Amankwa. To them the defendant is liable under the Fatal Accidents Act, 1846, as amended by the Law Reform (Civil Wrongs) Act, 1959.
His lordship then considered the evidence relating to the financial loss suffered by the dependants of the deceased and arrived at the lump sum of £G2,052. He continued:] This sum ought to be taxed down by the unforeseeable contingencies of life. Taking all these into account and applying my best judgment to the matter, I think the lump sum should be taxed down by the sum of four hundred and fifty two pounds (£G452). That leaves a round sum of £G1,600. That represents, as best as I can estimate it, the loss that the late Kwasi Menka’s dependants have suffered by his death, reduced to pounds, shillings and pence.
I give judgment for the plaintiff for and on behalf of the dependants of the deceased for the sum of £G1,600 with costs, which I assess in the inclusive sum of 75 guineas.
DECISION
Judgment for the plaintiff.
J.D.
