DIVISION: IN THE HIGH COURT, KUMASI
DATE: 8TH APRIL, 1963
BEFORE: APALOO J.
CASES REFERRED TO
(1) El-Rouh v. Hamili, High Ct., May 11, 1962 (unreported)
(2) El-Rouh v. Hamili [1963] 1 G.L.R. 308, S.C.
(3) Hill v. Luton Corporation [1951] 2 K.B. 387; [1951] 1 All E.R. 1028; [1951] 1 T.L.R. 853
(4) Marshall v. London Passenger Transport Board [1936] 3 All E.R. 83, C.A.
(5) Hall v. Meyrick [1957] 2 Q.B. 455; [1957] 2 All E.R. 722, C.A.
(6) Ingall v. Moran [1944] 1 K.B. 160; [1944] 1 All E.R. 97; 113 L.J.K.B. 298, C.A.
(7) Hilton v. Sutton Steam Laundry [1946] K.B. 65; [1945] 2 All E.R. 425; 115 L.J.K.B. 33, C.A.
NATURE OF PROCEEDINGS
ACTION for compensation for the death of a person brought on behalf of the deceased’s estate. The
plaintiff later sought to amend the action to proceed under the Fatal Accidents Act, 1846. The facts are set
out in the judgment below.
COUNSEL
K. Sackey for the plaintiff.
Defendant in person.
[p.350] of [1963] 1 GLR 349
JUDGMENT OF APALOO J.
The defendant in this case was a lorry driver and was such in September 1960. On the 26th September
that year, he was in charge of a Bedford lorry No. AS 6630. He was involved in an accident on that day at
a place called Apatrapa junction on the Kumasi-Sunyani road. As a result of that accident, one John
Mensah who rode on that lorry met his death.
By his pleadings, the plaintiff who is the administrator of the estate of the deceased, claims that that
accident was due to the negligent driving of the defendant. This averment the latter admits. Accordingly,
the plaintiff in his capacity as such administrator, claims damages for the benefit of the estate of the
aforesaid deceased. In view of the nature of the argument addressed to me by counsel for the plaintiff, I
must quote the title of the suit and the endorsement on the writ. It is as follows:
“Kwaku Addae of Atimatim for and on behalf of the Estate of John Mensah (deceased)” and “Kwaku Ntim
of house M.E. 95, Kumasi “The plaintiff’s claim is as the administrator of the estate of John Mensah deceased, for three thousand
Ghana pounds (£G3,000) being damages for the death of the said John Mensah from injuries received by the
negligence of the defendant while a passenger on defendant’s vehicle No. AS 6630.”
This writ was issued on the 19th September, 1961. On the 14th October of the same year, a statement of
claim was lodged. The statement merely elaborates the writ and states the circumstances leading to the
deceased’s death. Paragraph 6 of the statement gives the deceased’s age as 24 years and avers that he was
married and there was a child en ventre sa mere at the date of his death. Nowhere was it mentioned that
the action was being taken for the benefit of these two, namely, the wife and the posthumous child. It
seems to me plain that they were merely mentioned as a circumstance that should be taken into
consideration in qualifying the unliquidated damages claimed.
It is clear therefore that this action was to all intents and purposes a common law claim pure and simple.
The plaintiff as administrator of the deceased sought to perpetuate the latter’s existence and claim
damages for the injuries which resulted in his death for the expressed purpose of benefiting his estate. In
the case of El-Rouh v. Hamili,1 I held in my ruling of the 11th May, 1962, that an action such as this was
not maintainable at common law and was barred by the actio personalis moritur cum persona rule. I for
one should be prepared to follow my own ruling, but it has passed from a persuasive to a binding
authority, since the Supreme Court in its judgment of the 18th March, 1963,2 held that such view was
right. Counsel for the plaintiff must have got wind of my ruling and therefore sought to put his house in order. On the 13th November, 1962, he filed without leave an amended writ and statement of claim. In these latter
[p.351] of [1963] 1 GLR 349
documents, the claim was put on two limbs, firstly for the benefit of the estate and secondly for the
dependents of the deceased. The first limb of the claim does not improve or in anyway alter the earlier
writ, the second is an entirely new statutory remedy. Counsel himself conceded that the claim on behalf of
the dependents can only lie under the Fatal Accidents Act, 1846,3 as applied to this country.
The amendments to the writ and statement of claim which counsel in fact filed are inoperative as they are
not the type of amendments that counsel is entitled to make without leave, under Order 28, r. 2 of the
Supreme [High] Court (Civil Procedure) Rules. Accordingly, counsel asks me to grant him leave to
regularise the position. He submits that it was his original intention to sue under the Fatal Accidents Act
and that the imperfections in his original writ and statement of claim were defects which do not render the
writ void and that he was entitled to the exercise of the court’s discretion. For authority, he relies on the
case of Hill v. Luton Corporation.4 Counsel also refers to and relies on Order 20, r. 4, Order 3, r. 2 and
Order 70, r. 1 of the Supreme [High] Court (Civil Procedure) Rules.
With regard to counsel’s submission that the writ in this case was intended originally to be brought under
the Fatal Accidents Act, I cannot but express my gravest doubts. Nowhere was it mentioned either in the
writ or statement of claim that the deceased died leaving dependents and that the action was intended to
be for their benefit. On the contrary, it was expressly stated that the action was taken for the benefit of the
estate and was taken by the administrator as such. I think the claim under the Fatal Accidents Acts was
conceived when counsel belatedly woke up to the fact that his common law action was doomed to failure.
My own powers to allow amendments under Order 28, r. 1 are extremely wide and were this matter not
caught by the Limitation Acts, I would have granted the required amendment subject to terms as to costs.
Under section 3 of the Fatal Accidents Act, 1846,5 as applied to Ghana, an action under the Act must be
commenced within twelve calendar months after the death of the deceased. Although this particular
limitation was amended in England to three years by section 3 of the Law Reform (Limitation of Actions)
Act, 1954,6 this Act does not apply to this country. It was held in the case of Marshall v. London
Passenger Transport Board7 that if a required amendment seeks to set up a new cause of action which was
statute barred, the amendment ought not to be allowed. This decision was followed in Hall v. Meyrick.8
That is precisely what the plaintiff seeks to do in this action. The plaintiff’s original action
notwithstanding his counsel’s ingenious argument was brought under the common law.
[p.352] of [1963] 1 GLR 349
The plaintiff now seeks to amend to set up a new cause of action based on statute. That remedy is now
statute barred. The cases of Ingall v. Moran9 and Hilton v. Sutton Steam Laundry10 decide that the court
ought not allow an amendment to a pleading which would have the effect of depriving the other party a
defence under the Limitation Acts.
Accordingly, I am precluded by authority from allowing the required amendment which is hereby
refused. The action itself is caught by the actio personalis moritur cum persona rule and ought to be and is
dismissed. The plaintiff is ordered to pay the defendant £G15 costs.
DECISION
Action dismissed.
