HIGH COURT, TAMALE
DATE: 17 MAY 1967
BEFORE: ANNAN J.
CASES REFERRED TO
(1) Daniels v. Vaux [1938] 2 K.B. 203; [1938] 2 All E.R. 271; 107 L.J.K.B. 494; 159 L.T. 459; 54
T.L.R. 621; 82 S.J. 335.
(2) Monk v. Warbey [1935] 1 K.B. 75; [1934] All E.R. Rep.373; 104 L.J.K.B. 153; 152 L.T. 194; 51
T.L.R. 77; 78 S.J. 783, C.A.
(3) Goodbarne v. Buck [1940] 1 K.B. 771; [1940] 1 All E.R. 613; 109 L.J.K.B. 837; 162 L.T. 259; 56
T.L.R 433 84 S.J. 380; 31 Cox C.C. 380, C.A.
(4) McLeod v. Buchanan [1940] 2 All E.R. 179; 84 S.J. 452: [1940] S.C. (H.L.) 17; [1940] S.L.T. 232, H.L.
NATURE OF PROCEEDINGS
ACTION by the plaintiff for damages against one of co-owners of a vehicle for injuries and consequential loss caused by the negligent driving by the servant or agent of the other co-owner and also breach of the statutory duty to insure the vehicle against thirty party risks. The facts are set out fully in the judgment.
COUNSEL
E. O. Appiah for the plaintiff.
T. D. Brodie-Mends for the defendant.
JUDGMENT OF ANNAN J.
The plaintiff claims damages against the defendants for: “injury and consequential loss caused by the negligent driving of one Ofori Yaw as servant or agent of both or either the defendants in driving the motor vehicle bearing registration number CR 100 and or by the breach by both defendants or either of them of statutory duty under section 3 of the Motor Vehicles (ThirdParty Insurance) Act, 1958.”
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The second defendant could not be found for service on him of the writ and the action was prosecuted only in respect of the first defendant. On the amended statement of claim the plaintiff set out the following particulars:
“(1) That on the date of the accident, 14 December 1962, he was a passenger for reward on vehicle No. CR 100 belonging to both defendants.
(2) That the vehicle was in charge of and being driven by one Ofori Yaw.
(3) Through the negligence of Ofori Yaw in the course of his employment, vehicle No. CR 100 collided with a stationary vehicle on the road, left the road and went in a ditch whereby the plaintiff sustained injury. The plaintiff gave particulars of the negligence of Ofori Yaw and also relied on the maxim res ipsa loquitur.
(4) Ofori Yaw used the vehicle on the road without there being in force in relation to the said user a policy of insurance in respect of third party risks. Both defendants caused or permitted the uninsured user contrary to section 3 of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958).
(5) Neither Ofori Yaw nor Atta Botsi, the second defendant, was at any material time possessed of any means with which to pay any sum in respect of the damages payable to the plaintiff by reason of the said accident.
(6) Ofori Yaw was the servant or agent of both or either defendant acting in the course of his employment or within the scope of his authority or agency and acted with the permission of both or either defendant as owners of vehicle No. CR 100.”
The first defendant in his statement of defence denied all these allegations in the plaintiff’s statement of claim. In particular he denied that Ofori Yaw was his servant or agent, or that the plaintiff was carried for reward to him as a passenger on vehicle No. CR 100 and further denied that he was the owner of vehicle No. CR 100 at the material time. The first defendant contended that he had sold the said vehicle No. CR 100 to the second defendant on a “work and pay” basis and that the second defendant was the owner of the vehicle at the date of the accident. On the pleadings the plaintiff set down ten issues for trial and of these issues the burden was on the plaintiff to prove the issues of negligence of Ofori Yaw, whether Ofori Yaw was the servant or agent
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of the first defendant, whether the first defendant was the owner of vehicle No. CR 100 and whether or not the first defendant caused or permitted Ofori Yaw to use vehicle No. CR 100 without insurance cover.
I will first deal with the issue of negligence. On this issue the only evidence for the plaintiff was that given by himself. On that evidence he was a passenger for reward on vehicle No. CR 100 on the date of the accident. Ofori Yaw was in charge of that vehicle as driver. On the way vehicle No. CR 100 was driven through the space left between two other vehicles that were stationary on either side of the road. Vehicle No. CR 100 failed to negotiate the passage without coming into contact with either vehicle and consequently hit one or the other vehicle and left the road and went into a ditch. This happened at about 10 p.m. on a straight though untarred road—the Yendi-Chenderi road. According to the plaintiff the two stationary vehicles were nearly opposite each other on the road and the road itself is about 34 feet wide. On the plaintiff’s evidence, and there was none to contradict it, the only conclusion open to me is that the driver, Ofori Yaw, was negligent. His negligence, in my judgment, was established clearly. The road was straight.The presence of two vehicles parked nearly opposite each other called for the exhibition of such care and skill by him as was necessary to prevent a collision with either vehicle. Ofori Yaw was under a duty to the plaintiff, a passenger in his vehicle, to take care not to cause any injury to him when negotiating the passage between the two vehicles. If the passage way was too narrow to permit his vehicle to negotiate it with a reasonable margin of safety on either side, then it was his duty to stop and to get the obstruction cleared before he drove any further. If on the other hand the passage was wide enough to admit his vehicle without risk of contact with the one or the other, then if in negotiating such a passage he brought his vehicle into contact with either of the other two vehicles, then in those circumstances, the inference is that he negotiated the passage without exercising such care and skill as was reasonably required of him having regard to the circumstances. And then there is the fact that both vehicles were stationary while he was moving, and the fact that he drove his vehicle into a ditch. All these circumstances point to the inescapable conclusion that Ofori Yaw was negligent. There is no evidence to rebut this conclusion. I find as a fact that vehicle No. CR 100 was driven negligently by Ofori Yaw on 14 December 1962 and that the plaintiff was injured as a result of the negligent driving of that person. The next issue for determination is that of the ownership of vehicle No. CR 100. Who was the owner of vehicle No. CR 100 at the date of the accident? It is not in dispute that the first defendant was at one
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time the sole undisputed owner of vehicle No. CR 100, but then he had asserted in his statement of defence that:
“The second defendant herein Atta Botsi of house No. I 53/40 Winneba bought the said vehicle Bedford Truck No. CR 100 from him (the first defendant)on `work and pay’ terms and that on 20 February 1962 the second defendant had paid an amount of seven hundred and ninety six Ghana pounds (£G796) out of then total purchase price of one thousand, one hundred Ghana pounds (£G1,100) . . .
The first defendant says that he was not the owner of the said vehicle at the material time, he having sold it to the second defendant on work and pay basis in Ghana.”
On the pleadings therefore the burden was on the plaintiff to prove ownership. Clearly the plaintiff himself did not know who was the owner of the vehicle at the material date. He did not give any evidence himself as to ownership, and he has had to rely on the evidence of the defendant on this issue. In order therefore to settle the issue of ownership the court can only look to the evidence of the defendant himself.
In his evidence the defendant stated a number of things. Firstly, he was the owner of the vehicle No. CR 100 before even Atta Botsi came to have any dealings with him in respect of it. As he described the subsequent transaction between them: “I know Atta Botsi. He used to live at Swedru, but went to live at Winneba. He is my customer. I sold vehicle No. CR 100 to Atta Botsi. Usually I sold vehicles on hire-purchase but in the case of some of my customers who were well known to me there was no written hire-purchase agreement. In the case of Atta Botsi there was no written hire-purchase agreement. The terms of the agreement between us were that Botsi should pay £G200 down and the balance by monthly payments of £G60. The total purchase price was £G1,100. Atta Botsi paid the deposit of £G200 and paid the monthly instalments, sometimes more, sometimes less than the agreed amount. This arrangement was made in 1961. Atta Botsi said he would work with the vehicle and pay off the balance. I agreed to this. He paid a total of £G896 of the purchase price.
It was for Atta Botsi to insure the vehicle, license and maintain it. He was responsible for all that according to our arrangement. He decided where and how to run the vehicle. I had no control of any sort over it. Atta Botsi had full control over it. I do not know Ofori Yaw. I have never seen him.”[p.346] of [1967] GLR 341
This evidence was given in examination-in-chief. When he was cross-examined, the following important matters came out: that vehicle No. CR 100 was registered with the defendant and Atta Botsi as owners; that the vehicle was first insured by Atta Botsi in the name of the defendant only; that the names of Botsi and the defendant both appeared on vehicle No. CR 100 as owners. The defendant said further that he put his name on the vehicle because as he put it, “I did not want him to sell the vehicle so I put my name also on it” and further on his cross-examination: “Q. Botsi had no right to sell the vehicle until he finished paying for it?
A. That is so.” And then again he admitted that he had an interest in the vehicle itself and went on: “If Botsi had finished paying for the vehicle I would have given him a note that he was sole owner. I would not have given him such a note before he finished payment unless I trusted him . . . He and I were joint-owners until he finished payment.” The defendant was asked the following question: “Q. Atta Botsi had the permission to use the vehicle any way he liked by way of business?” and he answered, “He had the right to do that.” In addition to this evidence two other matters came out in the evidence of the defendant. The first matter was that the defendant had been charged by the police in 1963 with permitting vehicle No. CR 100 to be used without insurance cover and that he had pleaded guilty to that charge. The defendant himself admitted the charge and plea but explained that he had not intended to admit the particulars of the charge but merely did so because he found it easier and cheaper to pay a small fine than to go all the way to Yendi. He had made an earlier and fruitless journey in connection with the charge but had to turn back at Yeji because the river was flooded and impassable. He therefore pleaded guilty by telegram. The second matter relates to exhibit C, a letter of the solicitor of the plaintiff to the defendant, tendered through the defendant. In exhibit C, the solicitor had said “I am informed that the vehicle No. CR 100 was owned by you and the particulars at the licensing office confirm this.” Exhibit C asked for particulars of any insurance of vehicle No. CR 100 as at 14 December 1962 and went on to say that if those particulars were not received within the next few days, proceedings would be instituted against the defendant personally. Clearly in exhibit C, the defendant was approached on the basis that he was the owner as at 14nDecember 1962 and the person who was under
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the duty to insure the vehicle. The defendant did not positively deny receipt of the letter. He said he did not actually remember the letter and could not say whether he replied to it or not as all his legal correspondence was handed over to his solicitor.
This then in the main is the evidence of the defendant relating to the issue of ownership of vehicle No. CR 100, and as I have already pointed out the only evidence, practically, on that issue. To determine the issue of ownership I would have to determine the legal nature of the relationship between the defendant and Atta Botsi in the light of the arrangement agreed upon by them in respect ofbvehicle No. CR 100. The starting point is the ownership of the defendant. He bought the vehicle himself as a dealer in motor vehicles, a business which he had engaged in for seventeen years. On his evidence henknew what a hire-purchase transaction was and clearly the transaction between him and Atta Botsi was not such a hire-purchase transaction. Indeed on the evidence it was not meant by either the defendant or Botsi to operate as a hire-purchase transaction. As the defendant or Botsi to operate as a hire-purchase transaction. As the defendant himself said his normal method of sale was through the use of the hire-purchase system but in cases where the customers were “well-known” to him there was no hire-purchase agreement. Presumably Atta Botsi was in the category of well-known customers. Again onthe evidence of the defendant although a fixed monthly instalment of £G60 had been agreed between the parties, Botsi paid “sometimes more, sometimes less than the agreed amount.” This method of payment in irregular amounts was apparently not contrary to the arrangement and in any case was not objected to by the defendant. On such facts, I find no difficulty in saying that the arrangement between the defendant and Atta Botsi did not amount in law to a hire-purchase transaction and was not meant to be one. Was the transaction then a credit sale which passed ownership in vehicle No. CR 100 to Atta Botsi and which resulted in a debt of the outstanding balance in favour of the defendant? This issue presents a fair amount of difficulty owing to the far from clear evidence of the defendant as to the incidents of the arrangement between them. One fact however stands out clear from his evidence and it is this that the defendant considered that he never at any time divested himself of ownership of vehicle No. CR 100 with Atta Botsi. On that evidence it was not the intention of the parties to the arrangement that Botsi should become the sole owner of vehicle No. CR 100. The defendant clearly had an interest in the vehicle itself, as distinct from its purchase price and this interest continued until Botsi fully paid for the vehicle. On this basis therefore Botsi had no right to sell the vehicle before final payment. As the defendant put it “he and I were joint-owners until
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he finished payment.” On this evidence I am of the opinion that it was the intention of the parties that the sole ownership of vehicle No. CR 100 was not to pass to Botsi until he fully paid for the vehicle and I find accordingly that sole ownership did not pass to Botsi under the arrangement with the defendant.
Do the facts as presented to me bear out the allegation of the defendant that Botsi acquired joint-ownership of vehicle No. CR 100 with him or did the defendant retain, under the arrangement, full ownership of vehicle No. CR 100 until payment in full? There is the fact that the first policy of insurance was made solely in the name of the defendant but then as against that there is the evidence of the defendant elicited in cross-examination, that both names appeared on the vehicle as owners. Then the defendant said that according to their arrangement it was for Botsi to continue the insurance, and to license and maintain the vehicle. There is the significant evidence that the defendant bought vehicle No. CR 100 with a chassis and no body and that he sold it to Botsi in that state and that it was Botsi, a carpenter, who built a body on it, apparently at his own expense. There is also the evidence that Botsi had to pay the balance of the purchase price whether he worked with the vehicle or not and that the defendant had no control over the movements of the vehicle. Taking these matters into consideration and after some initial uncertainty on the issue, I have finally come to the conclusion that on the evidence before me and looking at the probabilities of the matter, the balance comes down in favour of the contention of the defendant that he and Botsi were joint-owners of the vehicle. I am satisfied that the arrangement between them constituted a contract under which ownership of vehicle No. CR 100 was vested jointly in the defendant and Botsi in consideration of the payment of an amount of £G200 by Botsi to the defendant. The terms of the contract were that the sole ownership of the defendant in vehicle No. CR 100 ceased and in its place Botsi was given part ownership of the vehicle. Botsi further acquired a contractual right to possess the vehicle and to use it for work of an income earning nature. The object of the contract was that the person described as the “buyer” should acquire possession of the vehicle and with it the right to work with it to earn income and out of that income to buy out the share of the person described as “owner” in the vehicle by means of monthly payments to him of a figure in the neighbourhood of an agreed amount. The seller was under a contractual obligation to transfer sole ownership of the vehicle to the buyer after final payment for the interest of the seller in the vehicle and the buyer had a contractual right to possession and use for the purposes envisaged in the contract, namely, to work with it.The right of the buyer to possession and to earn income with the
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vehicle was exclusive to him so long as he kept up with the instalments and performed the other obligations. These obligations were to insure the vehicle, to license it and to maintain it at his own expense. It seems to me that the intention of the parties to the contract was to enable the “buyer” to be put in a position in which he could obtain the money with which to pay for the vehicle without going through the formalities of a hire-purchase agreement and without transferring full ownership to the buyer before payment while at the same time giving to the buyer rights in the vehicle itself more valuable than those of a mere hirer or bailee or licensee but less than those of full ownership.
The transaction therefore partakes of the nature of a sale. It was a sale by one person to the other of part of his interest in the vehicle coupled with an option in the buyer to buy out the interest of the seller. The seller cannot sell the vehicle without the consent of the buyer and vice versa and each party acquires an interest in it equal to, in the case of the buyer, to the amount of his total payments and in the case of the seller to the unpaid balance of the purchase price. I do not by any means seek to say that the type of transaction I have described above is the type of transaction generally known as “work and pay”. That term is not as at present advised a legal term of art. I have merely sought to classify the particular transaction described to me by the defendant. The defendant described it as a “work and pay” transaction in his statement of defence. It may well be that the transaction was one kind of an arrangement known by that name in the motor sales business. The evidence on that point was far from specific, that is, whether the transaction was of the type known as “work and pay” in the motor trade. It is clear to me however that it was a transaction entered into by the defendant, an experienced dealer in motor sales, with a favoured category of customers well-known to him, for the purpose of getting outside the rigid features of a hire-purchase agreement, and without concluding an outright sale on credit of the vehicle. To that extent the transaction may well be described as the ungainly offspring of a mating of necessity between two well-known and respected legal forms. I have come to the conclusion as to ownership after considering exhibit C and the evidence of the plea of guilty of the defendant. In my judgment neither piece of evidence operates to detract in any way from the effectiveness of that conclusion. Having settled, I hope, the issue as to ownership I now go on to the question of vicarious liability of the defendant for the proved negligence of Ofori Yaw either as his servant or agent. I would say at once without any hesitation that in so far as this issue is one of fact the evidence before me does not support such a conclusion that Oforia
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Yaw was either the servant or agent of the defendant. This much is clear from the evidence of the defendant and indeed the plaintiff said nothing to the contrary. The defendant did not know Ofori Yaw and was not aware of his existence. He had not engaged him to drive the vehicle or given it to him to drive. There is no evidence that Ofori Yaw at any time performed any service in connection with vehicle No. CR 100 for or on behalf of the defendant. Counsel for the plaintiff however argued that proof of ownership may suffice to show that a motor vehicle driven on the highway was so driven with the owner’s consent. He cited the case of Daniels v. Vaux [1938] 2 All E.R. 271. The first point to make about this submission is that the same submission was made without success in the case cited, on facts stronger than those now before me. In Daniels v. Vaux (supra) a mother, the defendant, had handed overher car to her 22 year-old son to use for his own private purposes, in circumstances in which the trial court held that she had permitted him to use it contrary to the duty imposed on her by section 35 of the English Road Traffic Act, 1930 (20 & 21 Geo. 5, c. 43). The son used the car as his own and on the facts Humphreys J. held that he was not satisfied that the plaintiff had proved any relationship of master and servant or principal and agent. Whatever may be the merits or demerits of the submission, the position is on the facts before me, that any inference or presumption that may arise from the mere fact of ownership has been effectively rebutted by the defendant. In my judgment it is quite impossible to say on this evidence that Ofori Yaw was driving the car as servant or agent of the defendant. The same conclusion must be arrived at in the case of Atta Botsi. On the facts he also could not have been the servant or agent of the defendant for the purposes of driving the vehicle. Before coming to this conclusion I have given consideration to exhibit C and the defendant’s plea of guilty. I do not think these matters can operate, viewed along with the rest of the defendant’s evidence to enable me to come to a conclusion different from what I have set out above. I find therefore that the defendant is not vicariously liable for the negligence of Ofori Yaw the latter not being his servant or agent at any time. This finding disposes of the first leg of the plaintiff’s case. Turning now to the second leg of the claim that claim is based on the defendants’ alleged breach of a statutory duty to insure vehicle No. CR 100 and not to cause or permit any uninsured user of that vehicle. This type of claim is based on a line of cases starting from 1934 in the leading case of Monk v. Warbey [1934] All E.R. Rep. 373, C.A. I have considered this case and others in the line, particularly Goodbarne v. Buck [1940] 1 All E.R. 613, C.A.; McLeod v. Buchanan [p.351] of [1967] GLR 341 [1940] 2 All E.R. 179, H.L. and Daniels v. Vaux which I earlier mentioned. On these authorities it is clear that a plaintiff has a right of action for damages arising from a breach of the statutory duty imposed by section 35 (1) of the English Road Traffic Act, 1930. That provision is reproduced in section 3 (1) of our Motor Vehicles (Third Party Insurance) Act, 1958, and the English cases are directly in point in deciding a case on based breach of section 3 (1) of the 1958 Act. In Monk v. Warbey (supra) the defendant, Warbey, the owner of a motor car had lent it to his friend Knowles to drive. Knowles had allowed another person to drive the car. There was an accident while this other person was driving the car. Neither of these two persons were insured and the policy of insurance did not extend to cover the user of the car by these other persons. The two principles laid down by this decision for proof of liability in this type of action are: (a) proof of a user not covered by insurance and that the defendant caused or permitted such user, and (b) that the plaintiff suffered damage by reason of the breach.
One cardinal fact which was made clear in all these cases is that for the plaintiff to succeed, he must prove that he suffered damage as a result of the breach of duty. In Monk v. Warbey itself Greer L.J. put it thus at p. 377: “The cause of action is complete if a provision of the statute has been broken and damage occasioned to the plaintiff, and that can be proved in any way in which courts of law are accustomed to have questions of damage proved. All that is required is that it should be proved that the man who was primarily liable is in such a financial position that nothing can be obtained from him by execution or by bankruptcy proceedings, because he is not an insured person, and, therefore, there is no recourse to an insurance company in his case. Here the damage had accrued at the date of the writ: neither the defendant to whom the car had been lent nor the defendant who was driving the car, had any money with which to pay damages: proceedings in bankruptcy would have been useless. The action might have been brought without joining these two as defendants at all, and it would have been successful if the plaintiff had been able to prove the facts as I havestated them, namely, that before the issue of the writ his only claim was against a man who could not pay and was not insured.” The same point as to proof by the plaintiff that damage has been suffered by him as a result of the breach of duty was emphasised in Daniels v. Vaux (supra) by Humphreys J. In that case the son died
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before action against him could commence and the action was against his estate under the of [1967] GLR 341-355law. By the Law Reform (Miscellaneous Provisions) Act of 1934 the writ was out of time, so that the plaintiff had in law no cause of action against the negligent driver. He therefore sued the mother. Although the court found in favour of the plaintiff that the mother was in breach of her statutory duty as owner of the car, it dismissed the claim on the ground that it was not proved that the plaintiff had suffered any damage as a result of the breach. As Humphreys J. put it in Daniels v. Vaux [1938] 2 All E.R. 271 at p. 278: “. . . I have to consider the question whether it can really be said that he has lost something as a result of this lady’s breach of statutory duty. The position is this. He could have sued the deceased person, and, if he had sued him, and either, in his lifetime or after his death, had recovered damages against him or his personal representative, it is admitted that he would have got his money. That is to say, it is not a case like the one that I have referred to, the leading case of Monk v. Warbey ([1935] 1 K.B. 75), in which the young man was insolvent.” With regard to what constitutes “causing” or “permitting” within the meaning of the section, there is the following extract from Goodbarne v. Buck [1940] 1 All E.R. 613 by MacKinnon L.J. at p. 616, C.A.: “In order to make a person liable for permitting another person to use a motor vehicle, it is obvious that he must be in a position to forbid the other person to use the motor vehicle. As at present advised, I can see no ground on which anybody can be in a position to forbid another person to use a motor vehicle except in a case where the person charged is the owner of the car. If one is the owner of a car or of a van, one can forbid or one can permit another to use it.” And again by Lord Wright in McLeod v. Buchanan [1940] 2 All E.R. 179 at p. 187, H.L.: “To `cause’ the user involves some express or positive mandate from the person `causing’ to the other person, or some authority from the former to the latter, arising in the circumstances of the case. To `permit’ is a looser and vaguer term. It may denote an express permission, general or particular, as distinguished from a mandate. The other person is not told to use the vehicle in the particular way, but he is told that he may do so if he desires. However, the word also includes cases in which permission is merely inferred. If the other person is given the control of the
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vehicle, permission may be inferred if the vehicle is left at the other person’s disposal in such circumstances as to carry with it a reasonable implication of a discretion or liberty to use it in the manner in which it was used.” I have put two questions to myself as the main issues before me on this aspect of the claim. Firstly, did the defendant permit Ofori Yaw and or Atta Botsi to use vehicle No. CR 100 while uninsured? Secondly has the plaintiff suffered any damage as a result of that act? With regard to the first question of permission, I have already found that on the true understanding of the arrangement between the defendant and Botsi both of them were co-owners of vehicle No. CR 100 and that Botsi had the contractual right to possess and use the vehicle for the purposes envisaged by the contract. I have also held that neither Botsi nor Ofori Yaw was the servant or agent of the defendant for the user of the vehicle. In the light of these findings I am of the opinion that the defendant did not cause or permit either Ofori Yaw or Botsi to usethe vehicle within the language of section 3 (1) of the Motor Vehicles (Third Party Insurance) Act, 1958. In my view if a contract between two persons creates a joint-ownership of a vehicle in both persons and further confers a right on one joint-owner to use the vehicle for his own income-earning purposes without any right in the other to control such user then it cannot be said that that other person caused or permitted the user of the vehicle by the joint-owner. In my view permission implies the power to forbid user or to regulate user or to limit user, such power issuing unilaterally and independently from one person to the other. On the facts there was no such permission issuing from the defendant to either Botsi or Ofori Yaw in respect of the user on 14 December 1962. The absence of such permission or causing is fatal to the claim and I must hold that the plaintiff has failed to prove any breach by the defendant of section 3 (1) of the 1958 Act.
I have in this regard considered the effect of the defendant’s admitted plea of guilty to a charge of permitting uninsured user of vehicle No. CR 100 on the date of the accident. In my view the explanation of the defendant regarding the circumstances in which he made this plea is on the probabilities more likely than not to be true and I accept it. On that explanation, taken together with the defendant’s evidence as a whole, I am satisfied that the plea of guilty cannot be of any weight, as evidence of an admission of the particulars of the charge. The plea is of course admissible evidence to prove the salient facts of the charge. But then every case has to be considered in the light of its peculiar facts, and in the case of evidence of such a plea the court has to decide what weight to attach to it. In deciding that weight to attach to such evidence regard will be had to all the
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circumstances in which the plea was made. I am prepared to say that in the case of traffic offences some persons may well plead guilty to save themselves the time that may be spent in attending court for the trial. I do not think it unlikely that accused persons, especially those who are self-employed in the way of business, would rather plead guilty to a traffic offence by letter or telegram than go to court. In circumstances of this nature a plea of guilty though admissible evidence of an admission ought not to have any weight attached to it. Apart from this there is the second question of damages. Neither on the evidence of the plaintiff himself nor of the defendants can it be said that the damage suffered by the plaintiff was the result of any breach of statutory duty, that is, even if it had been held that there was such a breach. This is for the reason that there was no evidence given to establish such damage. The plaintiff said he did not know the whereabouts of either Ofori Yaw or Botsi. That was all. Certainly such evidence cannot be considered sufficient to show that he has suffered any damage as a result of the breach itself. He has a cause of action against both persons, and there is nothing to show that such cause of action is barren or unlikely to yield him anything. One does not know the means of either person. All that has been said is that neither can be found. It is true the writ could not be served on Botsi. But then there could have been substituted service. That has not been done. In any case if the plaintiff could not proceed against these persons because he could not find them that certainly is no fault of the defendant nor attributable to any breach of duty. As in Daniels v. Vaux (supra) so in this case the plaintiff could not sue in the one case because the negligent driver was dead and the action against the estate was out of time and in this case he cannot proceed because they cannot be found. In what way then has the plaintiff been damnified by any breach of duty? The question is whether there is any ground upon which it can be said that the plaintiff in this case has been prevented by the breach of statutory duty of the defendants from recovering damages which he would otherwise have got from somebody else. The answer must be no. On this ground also the second leg of the claim must fail and I dismiss it. In the result the entire claim fails. I dismiss it and enter judgment for the defendant with costs. I haveconsidered it desirable to make an assessment of the damage suffered by the plaintiff, in case a contrary view is taken of the defendant’s liability elsewhere. On the evidence of the plaintiff and the doctor it is clear that the plaintiff’s left arm is practically useless, at any rate for use in the plaintiff’s vocation of teaching. He, however, has the use of his right hand and indeed was, at the date of the hearing, undergoing a further course in his chosen vocation. It is admitted that the plaintiff suffered no loss
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of earnings as a result of the injuries suffered by him, and if he continues in his chosen profession it does not appear likely that he would suffer any real set-back. He certainly has not stopped teaching and it does not appear that he intends or is likely so to do. Of course there has been a diminution of his ability to enjoy life’s comforts and amenities. He has a striking disability of which he is fully aware which indeed amounts to a deformity – that is his wasted arm. He has felt and still continues to feel considerable pain and suffering.
I think an award of N¢5,000.00 (five thousand new cedis) would represent a fair and reasonable assessment as a compensation for the injuries of the plaintiff and I assess this figure as the amount of damages I would have awarded to him if I had been able to hold that his claim should succeed. Costs to the defendant of N¢100.00 (one hundred new cedis) inclusive.
DECISION
Action dismissed.
S. E. K.
