COURT OF APPEAL
DATE: 24 APRIL 1967
BEFORE: OLLENNU, APALOO AND LASSEY JJ.A.
CASES REFERRED TO
(1) Winkfield, The [1902] P. 42; [1900-03] All E.R. Rep. 346; 71 L.J.P. 21; 85 L.T. 668; 50 W.R. 246; 18 C.L.R. 178; 46 S.J.163; 9 Asp.M.L.C. 259, C.A.
(2) Zelo, The [1922] P. 9; 91 L.J.P. 57; 126 L.T. 351; 38 T.L.R.69; 15 Asp.M.L.C. 428.
NATURE OF PROCEEDINGS
APPEAL from a judgment of the High Court setting aside a decision of a circuit court in an action for negligence. The facts are fully set out in the judgment of Apaloo J.A.
COUNSEL
No appearance by or on behalf of the appellant.
Respondent in person.
JUDGMENT OF APALOO J.A.
On 8 February 1967, we allowed an appeal from the judgment of the High Court in this matter. We set aside that judgment and restored the judgment of the circuit court given in favour of the appellant. We intimated that we would set out our reasons later on and this we now proceed to do.
The case arose as a result of an accident which occurred on Hall Avenue, Accra, on 16 December 1962.
The facts which gave rise to the action, are not in dispute. The appellant was the owner or, at any rate, was in charge of a Morris Oxford saloon car No. SG 7591. At about 4.30 p.m., on the aforesaid date, heparked this car in Hall Avenue. The appellant himself remained seated in the car. The respondent who was then driving a Mercedes Benz saloon car No.
[p.233] of [1967] GLR 231
AF 6277, reversed into Hall Avenue and hit the appellant’s car while it was still stationary. This collision damaged the bonnet and radiator grille of the appellant’s car. Accordingly, the appellant drove his damaged car to the garage of Messrs. C.F.A.O. where repairs were effected on it at a cost of £G70. The car took 42 days to repair and as it was used as a taxi cab, the appellant lost the earnings for a total number of 42 days. Accordingly, the appellant instituted the present action against the respondent to recover not only the cost of repairs but the loss of earnings. He grounded his claim on the fact that in reversing into his car, the respondent had been negligent.
The respondent, who is himself a legal practitioner, filed his own defence in which he admitted running into the appellant’s stationary car but denied that he was negligent in so doing. He averred that the damage, admittedly caused to the appellant’s car, arose as a result of inevitable accident. In any event, the respondent denied that the appellant suffered the alleged or any damage. It is important to note that in his statement of claim, the appellant pleaded that he was the owner of the car. That was not expressly denied in the statement of defence and when summons for directions were taken out, the only issues submitted to the circuit court for determination, were (a) whether or not the respondent was negligent and (b) if he was, the damages suffered by the appellant. When trial eventually opened before the circuit court, the plaintiff gave evidence of the accident and related how the collision occurred and the pecuniary loss he sustained thereby. He was cross-examined by the respondent who, as we said, is a lawyer and who at that time, was conducting his own defence. It was not suggested to the appellant, even faintly, that he was not the owner of the taxi cab. Indeed the trial proceeded on the basis that he was.
When the appellant closed his case, the respondent for his part, gave his version of how the accident occurred. He said in substance, that the brakes of his car had been out of order and he got a fitter to repair them. He said this accident happened after the repairs and after the fitter invited him to try the car. He testified that the brakes again failed him and all his attempts to avoid colliding with the appellant’s car were therefore of no avail. On that account, he denied that he had been negligent. While the action was pending in the circuit court, the respondent wrote to the Licensing Officer, Accra, apparently to obtain particulars of the car in question. He received a reply to the effect that the car was originally registered in the name of Messrs. C.F.A.O. but had since 27 November 1962, been transferred to Rachad Zagloul. Although he had concluded his evidence, an application was made by counsel who was then appearing on his behalf, for the respondent
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to be recalled at a resumed hearing. This application was granted and the respondent re-entered the witness-box and tendered the letter from the licensing officer. When, as we said, the car was repaired by C.F.A.O., four receipts were handed to the appellant and were produced in evidence by him. These bear the name of Zagloul. Accordingly, when evidence concluded, it was submitted on behalf of the respondent that the appellant was not the owner of the car and had therefore no cause of action. For this submission, reliance was placed on the letter from the licensing officer and the receipts. This contention failed as the learned circuit judge held that as the respondent did not put in issue the appellant’s title to the car in his pleadings, he ought not to be heard to contend that the car did not belong to him.
Thereafter, the learned judge proceeded to deal with the merits of the case. He took the view, with whichwe are in agreement, that the admitted facts raised a presumption of negligence against the respondent. He thought that as the respondent relied on the defence of inevitable accident, he was obliged to show that he “took all reasonable measures which a reasonable and prudent person would take to avoid the collision.” He examined the oral evidence at some length and related this to what he saw at an inspection of the scene of the accident and came to the conclusion that the respondent failed to take reasonable steps to avoid the collision and therefore the defence of inevitable accident did not avail him. The learned judge basing himself on the receipts, found that the appellant spent £G70 to repair his car. He accepted the evidence that the car took 42 days to repair and held that the appellant lost income at the rate of £G3 per day for the period. He therefore awarded in favour of the appellant, damages which included the cost of repairs and the loss of earnings. Against that judgment, the respondent appealed to the High Court on six grounds. The only ground on which he succeeded, and which to us is relevant, is the ground which claimed that the “learned trial circuit court judge gave an erroneous interpretation of the rules of court and therefore erred in law.” On this ground, the respondent, arguing his own appeal, reiterated to the High Court his failed contention that the appellant was not the owner of the car and therefore had no locus standi to litigate about it. He submitted that the circuit court judge had put an erroneous construction on Order 19, r. 14 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), and that upon a true construction of those rules, he had put the ownership of the car in issue in the circuit court. The learned judge of the High Court was persuaded by this wholly untenable argument and proceeded to reverse the judgment
[p.35] of [1967] GLR 231
of the circuit court on the ground that “the plaintiff – respondent not being the owner of the taxi and not having shown any authority to sue, he could not in law maintain any action against the defendant – appellant since the latter did not owe him any duty of care.” When this matter came before this court, it appeared to us that the respondent did not in fact raise any issue as to the appellant’s title to the car in his pleadings and as it was not in fact one of the issues ordered to be tried, we felt that the learned circuit judge’s decision on this point was right. In any event, as the appellant was undisputably in possession of the car at the time of the accident, we considered that he was entitled to maintain an action against a wrongdoer, even if he was not in fact the true owner. We thought therefore that no good grounds existed for interfering with the conclusion of the circuit court. We therefore called upon the respondent to support the judgment of the High Court. In an endeavour to do so, the respondent referred us to the pleadings and in particular, to paragraph one of the statement of defence which makes a general traverse of all facts in the statement of claim save those specifically admitted. The respondent then submitted to us, as he did before the court below, that that paragraph put in issue the appellant’s title to the car. We thought this argument was unsound because if the respondent had wanted to make an issue of the ownership of the car, he would specifically have denied paragraph one of the statement of claim and followed it up with an averment that the appellant not being the owner of the car, had no right to sue. That being a question relating to the appellant’s capacity to sue, the respondent would have included or asked for it to be included in the issues settled in the summons for directions. We think he would also have cross-examined the appellant to show that Zagloul and not he was the owner of the car. The truth appeared to us to be that the respondent became possessedof information which suggests that the title to the car was vested in a person other than the appellant only after he filed his pleadings. We did not think that the mere fact that the car happened to be registered in police records in a name other than the appellant’s is conclusive evidence of his want of title. True, it is something about which an explanation would be required of him and had the respondent thought fit to dispute the appellant’s claimof ownership either in the pleadings or evidence, we felt no doubt that the appellant would have offered an explanation of how a car which he claimed to belong to him, came to be registered in the name of Zagloul. Accordingly, like the learned circuit judge, we thought that the respondent failed to comply with the requirements of Order 19, r. 14 of the Supreme Court (Civil Procedure) Rules, 1954 (L.N. [p.236] of [1967] GLR 231140A), and he ought not therefore to be heard to contend that the ownership of the car was one of the controverted issues before the circuit court. Even if we had determined this point in the respondent’s favour, we did not think it would have availed him as the appellant was, at any rate, in possession of the car at the time of the accident and his possession was good against a wrongdoer. The respondent was not claiming under Zagloul and he could not therefore set up a jus tertii against the appellant. In The Winkfield [1902] P. 42, C.A. it was held that in an action against a stranger for loss of goods caused by his negligence, the bailee in possession can recover the full value of the goods, although he would have a good answer to an action by the bailor for damages for the loss of the thing bailed. The principle of this case was followed in The Zelo [1922] P. 9. In that case, the plaintiffs contracted to salve a sunken vessel and were given possession by the owners for this purpose. While they were still in possession in pursuance of the contract, the vessel was negligently run into and irreparably damaged by the defendant’s vessel. It was held that as the plaintiffs were in
possession of the wreck, they were entitled to recover the whole value of it against the defendants. At p. 221, para. 448 of MacGillivray on Insurance Law (5th ed.), Vol. I the law on this matter is stated with extreme clarity. It is said, “A person in possession of property may sue a third person who has negligently damaged or destroyed it, and may recover from him the full amount of damage up to the total value of the property.” Accordingly, whether the appellant was the true owner of the damaged car or was merely a bailee of it, he was entitled to maintain an action against the respondent who was a mere tortfeasor and on the facts of this case, the learned circuit judge was right in awarding damages in his favour. It is for these reasons, that we thought the learned High Court Judge was in error in reversing the said judgment and for this same reason, we set aside the judgment of the High Court and restored that of the circuit court with costs here and below.
JUDGMENT OF OLLENNU J.A.
I agree.
JUDGMENT OF LASSEY J.A.
I also agree.
DECISION
Appeal allowed.
D. R. K. S.
