COURT OF APPEAL
DATE: 3 JULY 1967
BEFORE: OLLENNU, AZU CRABBE AND APALOO JJ.A.
CASES REFERRED TO
(1) Ashitey v. Dodoo [1967] G.L.R. 125, C.A
(2) Akrong v. Bulley [1965] G.L.R. 469, S.C.(3) Hilton v. Sutton Steam Laundry [1946] K.B. 65; [1945] 2 All E.R. 425; 115 L.J.K.B. 33; 174 L.T.
31, C.A.
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(4) Baiden v. Solomon [1963] 1 G.L.R. 488, S.C.
NATURE OF PROCEEDINGS
APPEAL from the judgment of Djabanor J. delivered on 12 May 1965 wherein the appellant was awarded damages under the Fatal Accidents Acts. The facts are sufficiently stated in the judgment of Azu Crabbe J.A.
COUNSEL
L K. Abban for the appellant.
No appearance by or on behalf of the respondent.
JUDGMENT OF AZU CRABBE J.A.
This is an appeal from the judgment of Djabanor J. dated 12 May 1965, whereby he awarded £G100 damages in favour of the plaintiff, but he made no order as to costs.
The appeal is directed mainly against the learned judge’s assessment of the damages claimed, for it is alleged that the award in the circumstances was grossly inadequate, having regard to the evidence adduced at the trial. The respondent did not appear at the hearing of the appeal, neither was he represented by counsel. But in view of certain unsatisfactory features of the case which are apparent in the record, we have decided, following the decision of this court in Ashitey v. Dodoo [1967] G.L.R. 125 to exercise. the powers and authority conferred by rules 31 and 32 of the Supreme Court Rules, 1962 (L.I. 218).The relevant terms of rules 31 and 32 are: “31. The Court may . . . make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to enquire into and certify its finding on any question which the Court thinks fit to determine before final judgment in the appeal . . . and generally shall have as full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Court as a Court of first instance, and may rehear the whole case . . . 32. The Court shall have power to give any judgment and make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs. These powers may be exercised by the Court, notwithstanding that the appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision.” The plaintiff by his writ in this action claimed damages for £G5,992 in respect of the death of his late brother, Charles Reuben
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Graves. The deceased died on 24 November 1959, whilst he was travelling as a passenger in a vehicle owned by the first defendant, but driven at the time by the second defendant. The plaintiff’s claim was obviously brought under the Fatal Accidents Acts, 1846-1864 (9 & 10 Vict., c. 93 and 27 & 28 Vict., c.95).
The title of the plaintiff’s writ which was filed on 10 December 1960, does not show the capacity in which he was suing, but the endorsement, so far as is material, is in the following terms: “The plaintiff as customary successor and administrator of Mr. Charles Reuben Graves (deceased) brings this action against the defendants for the benefit of the children, and the dependants of the said Charles Reuben Graves (deceased)…”
The writ was on 23 November 1960 served on the first defendant who, without waiting for the statement of claim, filed a defence on 9 December 1960. Nothing, however, really turns on this statement of defence at this stage. On 19 December 1960, the plaintiff filed a statement of claim in which he made the following material averments: (1) that he was a government pensioner, (2) that he was suing “as thencustomary successor and administrator of the deceased Charles Reuben Graves,” (3) that the death of the deceased was due to the negligent driving of the second defendant in the course of his employment and (4) that the claim was against the first and second defendants jointly and severally for damages for £G5,992 “for the persons who have suffered special damage from the said negligence of the second defendant.” Full particulars of the claim, and the persons on whose behalf the action was brought by the plaintiff, were annexed to the statement of claim. The persons named in the particulars were only the wives and children of the deceased, and it is significant that the plaintiff claimed nothing for himself. The first defendant thereupon filed an additional statement of defence, and taking the two statements together, it is clear: (1) that the first defendant was admitting ownership of the vehicle which ran off the road on 24 November 1959, resulting in the death of the deceased, and (2) that the second defendant who was the driver of the vehicle at the material time was acting in the course of his employment. The first defendant maintained and stressed that the vehicle was insured, and that the Royal Exchange Assurance alone should be asked to pay the damages claimed.
On 29 May 1961, the trial court granted the first defendant leave to deliver a further defence, and in a statement of defence filed on his behalf by counsel, it was denied that the driver was negligent,
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and further it was alleged that in carrying the deceased in the vehicle the driver was acting outside the scope of his authority. The first defendant also relied on the maxim volenti non fit injuria.
The three issues settled for trial at this stage were: (1) whether the second defendant drove negligently, (2) whether the first defendant was vicariously liable for the negligence of the second defendant, and (3)nwhether in view of the fact that the second defendant had not even entered appearance, judgment should be entered against him in default of appearance. On 18 November 1963, Bruce-Lyle J. granted an application by the plaintiff under Order 13, r. 4 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), and ordered that final judgment be entered against the second defendant. The learned judge, however, reserved the issue of damages to be decided after the case against the first defendant had been heard and determined. On 27 May 1963, the first defendant was granted leave to add three more grounds of defence. These were: (1) that the plaintiff did not hold letters of administration at the time he issued the writ, and therefore had no title to sue, (2) that even if letters of administration were granted in December 1960 it was barred by the limitation period in the Fatal Accident Acts, and (3) that the plaintiff could not sue in his capacity as customary successor. These matters were accordingly set down as triable issues.
On 22 June 1964, the plaintiff was also granted leave to amend the title of his writ of summons to read: “Between: —George W. Graves as customary successor of } C.R. Graves deceased and as next friend of the } Plaintiffs Dependants of the deceased C.R. Graves for } And on behalf of the said dependants }
AND
1. Thomas Oyewoo, House No. 8, Maxwell } Street, Sekondi } Defendants”
2. James Adams, H/No. 29/17, Prisons Road, } Sekondi. }
Paragraph (3) of the statement of claim was also amended to read:
“(3) The plaintiff as the customary successor of the deceased C.R. Graves and as next friend of the dependants of the deceased namely Mami Aradziwa, Richard, Mary, Mami Ketsina Abiriwas Yartelba and Kobina brings this action on behalf of the said dependant referred to herein.”
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The plaintiff therefore fought the case in his capacity as the customary successor to his late brother, and the next friend to the dependants of the deceased. His endorsement of the writ that he was suing in the capacity of a customary successor and administrator was, however, never amended.
A plaintiff who brings an action under the Fatal Accidents Acts, 1846-1864 must prove: (1) that the death of the deceased was due to injuries caused by the wrongful act, negligence or default of the defendant, (2) that the death of the deceased was in consequence of the injuries, (3) that the deceased had a right to recover damages from the defendant at the time of his death, and (4) that the death of the deceased has resulted in a pecuniary loss to his dependants.
The case for the plaintiff rested on his own evidence, and that of another witness, one Kwao Mensah, who said that he also was in the vehicle at the material time and testified as to the negligence of the driver, the second defendant. The plaintiff gave no evidence of the actual financial loss which the dependants had suffered as a result of the death of the deceased. He could do no better than mention the names of the dependants and their ages and then say: “I am claiming special damages of £G5,992.” He said that the deceased, who was 59 years old, had an average yearly income of £G1,200, and that when he took letters of administration the estate of the deceased was worth £G90. The first defendant was absent at the hearing, and therefore no evidence was led for the defence.
The first question which the learned trial judge dealt with in his judgment was the challenge to the plaintiff’s capacity to sue. He said: “It is sufficient in answer to these last three defences to state that the plaintiff is perfectly entitled to sue in this case as customary successor to the deceased, and also the next friend of the dependants.
The learned trial judge was in no doubt that the action was brought, to use his own words.” under the Fatal Accidents Acts (England),” and it is therefore surprising that he should fall into the error by thinking that a successor or a next-of-kin can maintain an action under those Acts. It is regrettable that none of the two leading cases on the point decided by the courts of this country was cited by counsel, for both cases provided solutions to the issues that arose at the trial. In one of these cases, Akrong v. Bulley[1965] G.L.R. 469, S.C. the plaintiff sued in her capacity as personal representative, successor and next-of-kin, and the question was whether she could maintain an action in any of these capacities. The court gave a negative answer to this question, and in the leading judgment of the court at p. 473, Apaloo J.S.C., expressed this firm, and nonetheless correct view of the position as follows:[p.808] of [1967] GLR 803 “Whether or not the endorsement on the writ discloses a valid capacity to sue depends solely on the provisions of the Fatal Accidents Acts and such interpretation as is put on those Acts by judicial decisions.
The only persons statutorily clothed with capacity to sue under those Acts are executors and administrators and latterly, in certain circumstances, the dependants.” The circumstances in which a dependant is entitled to bring an action are where there is no personal representative, or, if there is one, the personal representative fails to sue within six months. In my opinion, a successor under customary law has no locus standi in an action under the Fatal Accidents Acts, 1846-1864, unless he is able to prove that he is also a dependant. As Apaloo J.S.C. pointed out in Akrong v. Bulley (supra) at p. 475: “The word successor in its ordinary legal acceptation does not mean a dependant and the fact that these two may unite in a single individual does not justify us in stretching the meaning of that word to fit the particular facts of this case . . . Nor is the position improved by the coupling of the words ‘next-of-kin’ to the word ‘successor.’ A next-of-kin is merely a blood relative who may or may not be a dependant of the deceased.”
A successor is appointed by the elders of the family at their discretion, and the appointment is in respect to the family property that had been in possession of the deceased. He is not necessarily a dependant of the deceased. In an action under the Fatal Accidents Acts the damages recovered do not form part of the estate of the deceased person, but go, “as through a conduit pipe, to the dependants who are entitled”: per Lord Greene M.R. in Hilton v. Sutton Steam Laundry [1946] 1 K.B. 65 at p. 69, C.A. In Baiden v. Solomon [1963] 1 G.L.R. 488, S.C. which is a decision earlier in time than Akrong v. Bulley (supra) I said at p. 497: “The basis of the action was the pecuniary loss suffered by the dependants as a result of the deceased’s death. The mere existence of the relationship of parent and child is not sufficient to show pecuniary loss, and does not even raise a presumption of such loss. The question of dependency is one of fact and cannot be presumed from the legal obligation to support.”
In this case the plaintiff did not claim to be a dependant of the deceased, neither is there evidence that he has lost any pecuniary benefit as a result of the death of the deceased; and even though he subsequently pendente lite became an administrator of the deceased’s
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property, he did not fight the case in that capacity. It would follow that the plaintiff failed to comply with the provisions of Order 3, r. 4 of the Supreme [High] Court (Civil Procedure) Rules, 1954, and therefore his writ which he issued on 4 November 1960, was defective. In my judgment, the plaintiff’s action was incompetent at the date when the writ was issued, and his position was not in any way ameliorated by the subsequent grant to him of letters of administration and the amendment of the writ. Consequently, the whole proceedings and the judgment by the trial judge were a nullity. As regards damages the learned trial judge himself found that the plaintiff was unable to prove any. For the above reasons I would dismiss the appeal, but would, in exercise of the powers vested in this court by virtue of rules 31 and 32 of the Supreme Court Rules, 1962, set aside the entire judgment of the court below against the defendants. I would accordingly enter judgment for the defendants, but would make no order as to costs.
JUDGMENT OF OLLENNU J.A.
I agree.JUDGMENT OF APALOO J.A.
I am also of the same opinion and for the same reasons and have nothing to add.
DECISION
Appeal dismissed.
Judgment for the respondent.
S.Y.B.B.
