HIJAZI v. OPPONG [1965] GLR 558

DIVISION: SUPREME COURT

DATE: 28 JUNE 1965

BEFORE: MILLS-ODOI, APALOO AND BRUCE-LYLE JJ.S.C.

CASES REFERRED TO

(1) Amakom Sawmill & Co. v. Mansah [1963] 1 G.L.R. 368, S.C.

(2) Davies v. Powell Duffryn Associated Collieries Ltd. (No. 2)[1942] A.C. 601; [1942] 1 All E.R.

657; 111 L.J.K.B. 418, H.L.

NATURE OF PROCEEDINGS

APPEAL AND CROSS-APPEAL from a judgment of Jiagge J. sitting in the High Court, Accra, in which she awarded the plaintiff; £G1,015 2s. damages as administrator of the estate of one Akua Praah

(deceased).

COUNSEL

Djamson for the appellant.

Akainyah for the respondent.

JUDGMENT OF BRUCE-LYLE J.S.C.

This is an appeal from the judgment of Mrs. Jiagge J. sitting in the High Court, Accra, and dated 28

February 1964. The plaintiff-respondent (hereinafter referred to as the plaintiff) in his capacity as the administrator of the estate of Akua Praah (deceased) sued the defendant-appellant (hereinafter referred to as the defendant) claiming for the benefit of the estate and for the benefit of five grandchildren of Akua

Praah (deceased) who are dependants, funeral expenses and damages for personal injuries resulting in the death of Akua Praah caused by the negligent driving of the defendant.

The case for the plaintiff as set out in the statement of claim was as follows:

“(1) The ‘ plaintiff is the administrator of the estate of the late Akua Praah who died on or about 24

February 1963, and administration of whose estate was granted to him and he brings this action as well for the benefit of the estate of the said Akua Praah and for the benefit of Kojo Krah an invalid,

Yaw Okyere, Kwabena Oppong, Kwasi Bannor and Akosua Donkor all grandchildren of the said

Akua Praah.

(2) On or about 24 February 1963, the said Akua Praah was standing by the Odumasi-Jacobu cross roads bus stop on the Kumasi-Dunkwa road, when suddenly, the defendant, driving motor vehicle No. SG

7864, the property of the defendant at

[p.560] of [1965] GLR 558 full speed negligently and violently knocked down the said Akua Praah causing serious personal injuries to her.

(3) As a result of the injuries negligently caused to the said Akua Praah, by the defendant, the said Akua

Praah died shortly afterwards . . .

(4) PARTICULARS OF NEGLIGENCE

(a) Driving at a speed which was too excessive in the circumstances.

(b) Failing to keep any proper look-out or to have any or any sufficient regard for traffic which was or might reasonably be expected to be on the said road.

(c) Failing to see the said Akua Praah in sufficient time to avoid the said collision.

(d) Failing to stop, to slow down, to swerve or in any other way so to manage or control the said motor vehicle as to avoid the said accident.

(5) At the time of her death, the deceased was 50 years of age and in excellent state of health. The grandchildren of the deceased, Kojo Krah (invalid), Yaw Okyere, Kwabena Oppong, Kwasi Bannor and Akosua Donkor are twelve years, fifteen years, nine years, six years and six years respectively, and they were all of them wholly dependent upon the deceased for support and by her death they have lost the said means of support and have thereby suffered loss and damage.

PARTICULARS OF SPECIAL DAMAGE

Kojo Krah, an invalid depended on the deceased for all the necessities of life including his nursing. Yaw

Okyere and Kwabena Oppong are both attending school and depended on the deceased for their clothing, pocket money and other needs amounting to approximately £G25 per each child per annum. The deceased was also responsible for the maintenance of Kwasi Bannor and Akosua Donkor and spent approximately

£G25 per annum for each child. In addition the deceased who earned about £G550 per annum as a farmer and trader paid all the outgoings of the house occupied by her and her family and further paid for other sundry expenses.”

The case for the defendant set out in his statement of defence was also as follows:

“(1) The defendant puts the plaintiff to strict proof of the averments contained in paragraph (1) of the statement of claim.

[p.561] of [1965] GLR 558

(2) Save that an accident occurred on the Kumasi-Obuasi road between mile 23 and mile 25 on 24

February 1963, the defendant denies the allegations contained in paragraphs (2), (3) and (4) of the statement of claim and avers that the accident was caused by or contributed to by the negligence of the deceased.

PARTICULARS OF NEGLIGENCE

(a) Coming on to a main motor road from a side path without regard to traffic properly on the said motor road; or, alternatively, attempting to cross a main motor road without regard to traffic properly thereon.

(b) Failing to keep any or any sufficient look-out for traffic which was or might reasonably be expected to be on the said road.

(3) The defendant denies that the plaintiff suffered the damage alleged or at all.

(4) Save as herein before expressly admitted the defendant denies each and every allegation as if the same were herein set out in detail and traversed seriatim.”

The issues set down for trial in the summons for directions were:

“(1) Whether or not the deceased was killed in the accident as a result of the negligence of the defendant.

(2) Whether or not there was contributory negligence on the part of the deceased.

(3) Whether or not the estate of the deceased as well as Kojo Krah, Yaw Okyere, Kwabena Oppong, Kwasi Bannor and Akosua Donkor suffered any damage as a result of the death of the deceased, Akua

Praah.

(4) Whether or not the plaintiff is entitled to any damages.

(5) Any other issue raised by the pleadings.”

The evidence adduced in support of the plaintiff’s claim is that on the morning of 24 February 1963,

Akua Praah was standing at a bus stop near the Biribiwoman junction on the Kumasi-Obuasi road; she stood on the road about three to four feet from the edge of the road and on the left side facing Obuasi and at a curve; there was another bus stop and a palm-wine bar on the opposite side of the road. The defendant drove a Volkswagon van from Kumasi direction at an excessive speed and knocked down Akua Praah and dragged her to some distance from the bus stop. The defendant pulled up his van and later conveyed Akua

Praah to the Akrokeri hospital where she died from the injuries to both arms and to the head.

[p.562] of [1965] GLR 558

The evidence in support of the defence is that the defendant drove up a steep hill after sounding his horn; when descending he drove into a curve when about seven feet away the deceased Akua Praah walked fast into the road from the left side in an attempt to cross to the other side. The defendant on seeing her, swerved to the right to avoid her and the left mudguard of the van hit her. The defendant admitted that he drove at a speed of 40 miles an hour and that the deceased was knocked down when she was about three to four feet from the left edge of the road.

The learned trial judge, in her judgment, found as a fact that the defendant was negligent and that there was no contributory negligence on the part of the deceased and awarded the plaintiff £G1,015 2s. damages. Against this judgment the defendant has appealed to this court on the following grounds:

“(1) That the learned trial judge was wrong in her finding that the deceased was knocked down at a bus stop.

(2) That no evidence was adduced to establish that the defendant was negligent.

(3) That the learned judge failed to give sufficient consideration to the defence.

(4) That the damages were excessive in the circumstances …

(5) That the learned judge was wrong in admitting in evidence exhibits Bl and B2 when the photographer who took the said exhibits was not called as a witness and no ground was shown why he was not so called.

(6) That the learned judge was wrong in granting the request of counsel for the plaintiff with regard to the order in which counsel for the defendant wished to call witnesses for the defence.

(7) That in granting the said request of counsel for the plaintiff the learned judge unduly interfered with the case for the defence.”

The plaintiff has also cross-appealed on the issue of damages on the following grounds:

“(1) That the learned trial judge did not give any consideration to the domestic and other services rendered by the deceased to the dependents, in particular, Kojo Krah, in her assessment of damages.

(2) The damages awarded in the circumstances were inadequate having regard to the evidence adduced at the trial.”

The issues raised by grounds (1), (2) and (3) of the defendant’s grounds are all issues of fact determinable upon the evidence before the learned trial judge and on all these material issues the learned

[p.563] of [1965] GLR 558 judge found against the defendant on the facts as she was entitled to do, and I am unable to say that she was wrong in her findings on any of the issues. Indeed, upon the evidence, she could hardly have found otherwise. For convenience, I would deal with the submissions of counsel in support of ground (4) in the later part of this judgment.

On ground (5), learned counsel urged that the learned trial judge erred in admitting in evidence exhibits

B1 and B2, photographs of the scene of the accident showing the positions of the bus stops on either side of the road and the palm-wine bar, as they were not tendered by the photographer who took them. In support of this contention he relied on Order 37, rr. 59 and 60 (ii) of the Supreme [High] Court (Civil

Procedure) Rules, 1954.1 This court agreed with the submissions of counsel but pointed out to him that even if the photographs were excluded from the evidence there was abundant oral evidence of the facts upon which the trial learned judge could safely act. Counsel conceded to this and intimated that he did not wish to pursue this ground.

On ground (6) learned counsel contended that the learned trial judge erred in accepting the submission of counsel for the plaintiff that the defendant should first give his evidence before that of his witness the police constable. In support of this contention, learned counsel relied on the rule of practice that counsel should be allowed to present his case in the way he liked and more especially in the order in which he preferred to call his witnesses. While agreeing with this rule of practice I am of the opinion that there are certain cases in which a trial judge or magistrate can, in the exercise of his discretion and to meet the ends of justice, insist on a particular order in which witnesses should give their evidence and I find the circumstances of this case such as to fall within this category.

In this case the counsel for the plaintiff applied that the defendant should give evidence before the police officer and he gave as his reason for so applying the line of cross-examination he wished to adopt.

Defence counsel objected on the ground that the police officer came from Kumasi and at the time of the application had been in Accra for three days. The learned trial judge in the exercise of her discretion gave the following ruling:

“Yesterday while the plaintiff’s witness was giving evidence on the behaviour of the police constable at the scene in question defence counsel brought into court the police officer and he heard what was being said from the witness box. This irregularity was pointed out to defence counsel and his excuse was that he wanted the policeman to give him the statement the witness

[p.564] of [1965] GLR 558 had made. It was pointed out to counsel that the proper procedure would have been for counsel to ask permission of the court before the policeman was brought into court and the court would have stopped the witness giving evidence on oath at that time. In view of the above-stated facts I consider the request made by the plaintiff’s counsel a reasonable one and I grant it.”

In support of the above ruling, I am of the opinion that if the police constable had given his evidence before the defendant, who would have remained in court during the constable’s evidence, the constable would in all probability have given evidence adverse to the plaintiff’s case and the defendant having heard the evidence of the constable would have without difficulty repeated the evidence of the constable, more particularly the evidence as to the point of impact, and would not have admitted as he did that the deceased was knocked down at about three to four feet from the edge of the road. Having regard to the peculiar and unsatisfactory manner in which the police constable took the measurements of the scene of the accident, I am satisfied in my opinion that the learned trial judge rightly and judiciously granted the application.

In support of ground (4) learned counsel urged that in assessing the damages this court should overlook the proceeds of the deceased’s cocoa and foodstuff farms of £G370 as the plaintiff admitted in his evidence that that part of the proceeds was still used for the benefit of the dependants and that the trial court should have mitigated the damages. Learned counsel for the plaintiff, on the other hand, has appealed against the inadequacy of the damages and has urged that the £G20 per annum awarded for each dependant is inadequate and that it should be £G40 per annum per dependant.

The principles upon which damages are assessed in cases of this nature were laid down by this court in the case of Amakom Sawmill & Co. v. Mansah, 2 in which the formula of Lord Wright in Davies v.

Powell Duffryn Associated Collieries Ltd. (No. 2) 3 was accepted as the “more likely to be suitable to the conditions of life in this country.” 4 The formula in effect is that the datum or basic figure which has to be turned into a lump sum by a number of years’ purchase is represented by the balance when the ascertained or estimated amount required or expended by the deceased for his own personal and living expenses is deducted from the ascertained or estimated earnings of the deceased. Before applying this formula to this instant case it is necessary to deal with the submission of

[p.565] of [1965] GLR 558 learned counsel for the defendant that the proceeds of the farms should be overlooked in assessing the damages. I conceive that the plaintiff in his evidence admitted using part of the proceeds on the dependants but the fact remains that as a successor, he is in possession of the farms for the family of the deceased and therefore the dependants being grandchildren of the deceased are not entitled to that part of the proceeds of the farms in their own right so that in the event of the plaintiff being removed from office by the family it is more than likely that the dependants would no longer be allowed to enjoy that part of the proceeds. I therefore find that in assessing the damages the figure £G370 should be taken as the estimated earnings of the deceased at the time of death.

The next step is to ascertain the estimated amount expended by the deceased on herself and in doing so her mode of life and status should be taken into consideration. There is also no doubt that grandmothers tend to lavish money on their grandchildren and I feel that this fact should also be taken into consideration. On these considerations I am of the opinion that the sum of £G170 per annum is a reasonable amount which leaves the sum of £G200 as the amount expended on the dependants by the deceased in her lifetime. The medical officer who performed the post-mortem examination on the body of the deceased estimated her age as between 60 and 65 years, whilst the plaintiff guessed it at 52 years. The medical officer further stated in evidence that he found all the internal organs of the deceased intact and that there was no sign of disease. On the strength of this evidence I would put the age of the deceased at the time of death at 60 years. The learned trial judge allowed ten years as the years of purchase which I also consider, on the evidence mentioned supra coupled with the fact that deceased was on her way to her farms to work when she was knocked down, as most reasonable.

Applying the formula laid down in Mansah’s case (supra) to the amounts and to the years of purchase, I feel that the damages awarded by the learned trial judge are not adequate and I am of the opinion that the damages should be £G2,000 made up as follows: £G200 being the difference between the ascertained earnings of the deceased and the estimated amount expended by the deceased on her dependants multiplied by ten being the years of purchase. On the issue of taxing down this lump sum, the taxing down figure should take account of the future educational requirements of the dependants, the care and attention which Kojo Krah, an invalid, would have received from the deceased, the age of the deceased, the years of purchase in this case being ten years, and the uncertainties of the future and the matters of speculation and doubt. Upon,

[p.566] of [1965] GLR 558 these considerations I am of the opinion that the lump sum of £G2,000 should be taxed down to £G1,800. For these reasons I would dismiss the appeal of the defendant and allow the cross-appeal of the plaintiff as against damages and set aside the sum of £G1,000 damages awarded by the trial court. In lieu thereof the following is substituted: There will be judgment for the plaintiff for the sum of £G1,800. He is entitled to his costs in the court below which I assess at 100 guineas. He is also entitled to his costs in this court fixed at £G38 5s.

JUDGMENT OF MILLS – ODOI J.S.C.

I agree.

JUDGMENT OF APALOO J.S.C.

I also agree.

DECISION

Appeal dismissed.

Cross-appeal allowed.

E.A.-A.