DIVISION: IN THE SUPREME COURT
DATE: 18TH MARCH, 1963
BEFORE: VAN LARE, MILLS-ODOI AND OLLENNU JJ.S.C.
NATURE OF PROCEEDINGS
APPEAL from a ruling on a preliminary point of law. The High Court exercising its powers under Order
25, r. 3, had dismissed the plaintiff’s claim ruling that it disclosed no cause of action.
COUNSEL
Dr. de Graft-Johnson (with him Sotomey) for the appellant.
Asafu-Adjaye, Snr. (with him J. B. Quashie-Idun) for the respondent.
JUDGMENT OF OLLENNU J.S.C.
The appellant, hereinafter called the plaintiff, sued the respondent, hereinafter called the defendant, in the
High Court, Kumasi, to recover damages for injuries he allegedly sustained in a motor accident. The
accident involved a Volkswagen car No. AN 3166 in which he was travelling, owned and driven at the
material time by one Ahmed Wasfi Al-Ghanname, now deceased. The said Ahmed Wasfi Al-Ghanname,
hereinafter called the deceased, died in the said accident. The plaintiff’s case is that the accident was
caused by the negligence of the deceased in the driving of his said car. The defendant is sued in his
representative capacity, i.e. as attorney of one Nuri Al-Ghanname, administrator of the estate of the
deceased. In addition to denying all allegations of fact made by the plaintiff in his statement of claim, the defendant
raised a point of law by his pleading, namely, that the plaintiff has no cause of action against the estate of
the deceased alleged tortfeasor, by reason of the common law principle of actio personalis moritur cum
persona. The court tried this preliminary point of law as provided in Order 25, r. 2, of the Supreme [High]
Court (Civil Procedure) Rules, 1954, and resolved the same in favour of the defendant; holding that its
said decision disposed of the whole action, the court made and order, in exercise of the powers given it in
Order 25, r. 3, of the said Civil Procedure Rules, dismissing the plaintiff’s claim.
The plaintiff has appealed against the said ruling to this court on one original ground of appeal namely,
“The learned judge’s interpretation of section 15 (2) of the Motor Vehicles (Third Party Insurance) Act,
1958, is so foreign to the intention of the said Act that it cannot be correct.”
By leave of the court counsel for the plaintiff, in addition to the original, argued the following new
grounds, namely,
“I. The learned trial judge misdirected himself when he said that ‘the actio personalis rule is too firmly established to be overthrown by a sidewind.’
[p.310] of [1963] 1 GLR 308
2. The learned trial judge misdirected himself in holding that the plaintiff had no cause of action against the estate of Ahmed Wasfi Al-Ghanname (deceased).”
Arguing the two additional grounds of appeal, learned counsel for the plaintiff referred the court first to
section 83 of the Courts Ordinance, 1951,1 repealed, which said:
“Subject to the terms of this or any other Ordinance, the common law, the doctrines of equity, and the
statutes of general application which were in force in England on the 24th day of July, 1874, shall be in force
within the jurisdiction of the Courts,”
and submitted that the words “which were in force in England on the 24th day of July, 1874,” appearing
therein, should be interpreted as qualifying only the words “statutes of general application,” but not the
words, “the common law and the doctrines of equity” as well. Secondly he referred the court to article 40
(e) of the Ghana Constitution, 1960, and section 17 (1), (4) and (5) of the Interpretation Act, 1960.2
These are as follows:
“40. Except as may be otherwise provided by an enactment made after the coming into operation of the
Constitution, the laws of Ghana comprise the following …(e) the common law.”
“17 (1) The common law, as comprised in the laws of Ghana, consists, in addition to the rules of law
generally known as the common law, of the rules generally known as the doctrines of equity
and of rules of customary law included in the common law under any enactment providing for
the assimilation of such rules of customary law as are suitable for general application.”
“(4) In deciding upon the existence or content of a rule of the common law, as so defined, the Court may
have regard to any exposition of that rule by a court exercising jurisdiction in any country.
(5) A reference in an enactment to the common law shall be construed as a reference to it as affected by
any enactment for the time being in any country.”
Counsel next referred the court to article 42 (4) of the Ghana Constitution, 1960, which provides, inter
alia, that the court shall not “be otherwise bound to follow the previous decisions of any court on
questions of law.” Counsel then submitted that the proper interpretation to be placed upon the said section
83 of the Courts Ordinance, article 40 (e) of the Ghana Constitution, 1960, and section 17, subsections
(1), (4) and (5) of the Interpretation Act, 1960, is that the common law of England applicable to Ghana is
not the common law as it existed in 1874, but the common law as it existed on the 1st July, 1960, subject
to such modifications as may, from time to time, be made thereto. He submitted that since this court is not
bound by the previous decision of a court other than itself, any interpretation of section 83 of the Courts
Ordinance, to the contrary of what he
[p.311] of [1963] 1 GLR 308
suggested, made by any court which exercised jurisdiction in this country prior to the 1st July, 1960, is
not binding upon this court, and should be disregarded.
In our opinion this is not a proper place for the consideration of the term “any court” used in article 42 (4)
of the Ghana Constitution, 1960, to determine whether or not it includes any of the courts which exercised
in this country the jurisdiction now exercised by this court, namely the Privy Council, the Ghana Court of
Appeal, the former West African Court of Appeal, or the former Full Court. It is enough to observe that
no decision of any of those judicial bodies was cited to us which interpreted section 83 of the Courts
Ordinance, now repealed.
In our opinion the common law is distinct from statute law. The common law of England which remains
in full operation in Ghana and is part of the Ghana common law, is so much of the principles generally known as the common law, except in so far as the same is modified either by any legislation in Ghana, or
by any English statute of general application which was in force in England on the 24th July, 1874, which
said statute continues in force in Ghana by virtue of section 154 (4) of the Courts Act, 1960.3 An example
of such English statute, for the purposes of this case, is the Fatal Accidents Act, 1846,4 popularly known
as Lord Campbell’s Act.
Counsel referred to the English statute, the Law Reform (Miscellaneous Provisions) Act, 1934,5 section 1
of which lays down a general rule that all causes of action subsisting against or vested in a person shall
survive, upon his death, against, or for the benefit of, his estate, except in certain cases. He submitted,
therefore, that the common law rule of actio personalis moritur cum persona ceased to exist in England in
1934 with respect to claims for personal injuries, by reason of the Law Reform (Miscellaneous
Provisions) Act of that year, and was therefore not part of the common law of England on the 1st July,
when the Ghana Constitution came into force: consequently he said there was no such common law rule
existing in 1960, which can now be regarded in Ghana as part of the rules comprising the common law.
We cannot accept this submission. Firstly the English Act of 1934 merely gave a statutory remedy where
none existed in England at common law; it did not create a new common law rule. It means that the said
common law rule remains in force in England except that by reason of certain statutes it cannot be
successfully pleaded in bar to certain specified actions. Statutory provision of a new remedy is not
expansion of the common law rule as it is understood in common law jurisdiction. Where the common
law does not provide a particular remedy, statute may create one. The courts of Ghana cannot therefore
take cognizance of the English Law Reform (Miscellaneous Provisions) Act, 1934, as modifying the rules
of common law in all countries where such rules apply. Secondly,
[p.312] of [1963] 1 GLR 308
not being a statute of general application in force in England on the 24th July, 1874, the said Act does not
form part of the common law in Ghana as defined in section 17 of the Interpretation Act, 1960.6
It is worthy of note that when the Ghana Parliament in 1959 passed the Law Reform (Civil Wrongs) Act,
1959,7 reproducing the provisions of the Fatal Accidents Act, 1846, and defining the term children
therein to embrace a larger group than is denoted by that term as in the said Fatal Accidents Act, it did not
think it necessary to reproduce the provisions or any of the provisions of the English Law Reform
(Miscellaneous Provisions) Act, 1934, although it reproduced the provisions of later English statutes
dealing with civil wrongs and remedies, namely the Law Reform (Contributory Negligence) Act, 1945.8
It means then that common law in so far as it relates to civil wrongs and claims is in full operation in
Ghana except to the extent as the same is now regulated by statute law in force in Ghana, or by any
decision of this court.
Now, since the plaintiff’s claim is not based upon any statutory right for relief, the issue raised between
him and the defendant has to be determined either by the common law or by the customary law, as
provided in section 66 of the Courts Act, 1960.9 The plaintiff is not subject to, and cannot therefore claim
to have the issue settled according to any system of customary law; moreover his claim does not come
within any of the rules 1 to 5 of the said section 66, subsection (1). Therefore the court has to be guided
by section 66 (1) rule 6 which provides that in such a case the issue should be determined according to the
common law. The common law rule applicable to the particular section is therefore the action personalis
moritur cum persona rule.
We are therefore of opinion that the learned judge properly directed himself on the law, when he held that
there was no cause of action and that he rightly dismissed the plaintiff’s claim.
It was submitted in the High Court on behalf of the plaintiff that the action was founded on statute,
namely, section 15 (2) of the Motor Vehicles (Third Party Insurance) Act, 195810 the said subsection
reads:
“(2) A policy issued under the provisions of this Act shall remain in force and available for third parties
notwithstanding the death of any insured under such policy as if such insured person were still alive.”
The learned judge rejected that submission. Although we do not agree with all the reasons he gave for
rejecting the submissions, we are of opinion that the learned judge was right in rejecting it for the
following reasons: The purpose of the Motor Vehicles (Third Party Insurance) Act, 1958, as given in the
short title is, “to make provision for the protection of third parties
[p.313] of [1963] 1 GLR 308
against risks arising out of the use of motor vehicles, and for purposes incidental thereto.” In other words
the Act provides for a particular insurance such that a party injured in a motor accident may be able to
recover damages from the insurer of the vehicle arising out of the negligence of the insured owner or his
driver. That contract of insurance is one for the benefit of persons, between whom and the insurers, no
contractual relationship exists. Therefore the liability of the insurers is effectively one of indemnity to the
insured, who is primarily liable for his or his servant’s tortious acts to the injured third party. Section 10
imposes upon the insurers, once they issued a certificate of insurance of the insured, the obligation to pay
a third party entitled to the benefit of a judgment coming within the policy, any sum adjudged in favour of
the third party. And section 11 of the Act also provides that in certain eventualities, if
“liability is incurred by the insured his rights against the insurer under the policy in respect of that liability
shall, notwithstanding anything in any written law to the contrary contained, be transferred to and vest in the
third party to whom the liability was so incurred.”
In our view the purpose of section 15 (2) of the Motor Vehicle (Third Party Insurance) Act, 1958,11 is to
keep the policy alive upon the death of an insured tortfeasor, in order to preserve the rights which a third
party might have acquired under it, in cases like those provided for in sections 10 and 11, to enable the
third party to recover even after the death of the insured tortfeasor. This, in our opinion, is the only
purpose of this section; the section cannot be interpreted to give a cause of action against the estate of a
deceased tortfeasor, a right which does not exist at common law.
We are of opinion that the ruling of the learned judge is sound and should not be disturbed.
We must say, however, that we are in sympathy with the plaintiff over his inability to maintain an action
against the estate of the deceased tortfeasor due to the present state of our law; we are happy to note that
steps are being taken to enable the courts to entertain actions of this nature.
This appeal is dismissed with costs fixed at £G28 10s.
DECISION
Appeal dismissed.
J. D.
