KOBINA AND ANOTHER v. BADU [1968] GLR 1150

DIVISION: HIGH COURT, SEKONDI

DATE: 23 DECEMBER 1968

BEFORE: ABOAGYE J.

NATURE OF PROCEEDINGS

ACTION against the defendants, jointly and severally, for damages for negligence. The facts are sufficiently set out in the judgment.

COUNSEL

A. H. Sackeyfio for the plaintiff.

S. Kwami Tetteh for the defendants.

[p.1152] of [1968] GLR 1150

JUDGMENT OF ABOAGYE J.

This action arose out of the negligent driving of an Austin omnibus No. WR 3646 by the first defendant on the Apowa—Takoradi motor road on or about 9 March 1965. The plaintiff’s brother, Mark Kweku Bosumtwe, was killed as a result of the first defendant’s said negligent driving and a writ was issued on behalf of the widow and two sons of the deceased against the first defendant as the servant of the second defendant and the latter as the owner of the omnibus and master of the first defendant for N¢10,000.00 damages for the death of the said Mark Kweku Bosumtwe upon whom they depended for their livelihood. The first defendant did not enter an appearance in the suit and on 17 July 1967, with the leave of this court, the plaintiff entered interlocutory judgment against him. On 10 November 1967, final judgment was given against the first defendant by my brother, Koranteng-Addow J., for N¢5,000.00 with N¢150.00 costs. The second defendant on the other hand entered an appearance and filed a defence through his solicitor, Mr. E. D. Kom. In his statement of defence the second defendant denied that he was the owner of the Austin omnibus No. WR 3646 at the time of the accident and, therefore, that he was the master or the principal of the first defendant who could be held vicariously liable for his negligent driving.

As final judgment had been given against the first defendant at the time the case against the second defendant was heard, the only issues which were tried were: (1) whether or not the second defendant was the owner of Austin omnibus No. WR 3646 at the time of the accident and (2) whether or not the first defendant was the servant or agent of the second defendant acting in the course of his employment at the material time.

To prove the two issues against the second defendant, the plaintiff gave short evidence that the Austin omnibus No. WR 3646, which was involved in the accident on 9 March 1965, belonged to the second defendant and that it was driven at the time of the accident by his driver the first defendant. The second defendant gave evidence to the effect that he bought the vehicle in question from one Nigerian called Obemena about four or five years ago and engaged the first defendant, to drive it. He did not find the running of the vehicle profitable so he decided to sell it. The first defendant then offered to buy it and he sold it to him on hire-purchase terms at N¢600.00. The sale transaction was evidenced in writing by exhibit 1. A. F. Bukari, a licensed letter-writer, gave evidence that he prepared the original of exhibit 1 for the defendants and E. Armah, the defendants’ second witness, gave evidence that he caused exhibit 1 to be made [p.1153] of [1968] GLR 1150 when the original typewritten agreement was taken to him by the defendants on 10 March 1965, that is a day after the accident.

By clauses (2) and (3) of the agreement, exhibit 1, the vehicle No. WR 3646 was given to the first defendant by its owner, the second defendant, to work with and pay its cost of N¢600.00 by weekly instalments of N¢25.00. The vehicle was to remain the property of the second defendant until the last pesewa had been paid to the second defendant by the first defendant. The two clauses read as follows:

“(2) That the Austin omnibus No. WR 3646 has been handed over by the first party to the second party to work with, and settle the sum of three hundred pounds (£G300) by monthly instalments of fifty pounds (£G50) which is by weekly instalments of twelve pounds and ten shillings (£G12 10s.) commencing from 1 September 1964.

(3) That the Austin bus No. WR 3646 shall remain the property of the first party, and shall also be licensed in the name of the first party until full payment of the sum of three hundred pounds (£G300) shall be made by the second party to the first party, when the first party shall also cause the Austin bus No. WR 3646 to be legally transferred to the name and address of the second party—Mr. Driver Anthony Cobbina of Apowa.”

The first party is the second defendant herein and the second party is the first defendant.

The second defendant said in his evidence that on 9 March 1965, that is, on the day of the accident, the first defendant had not finished paying the N¢600.00; he had N¢40.00 more to pay. In view of that piece of evidence and the words of clauses (2) and (3) of exhibit 1, I can hardly accept the defence that the second defendant was not the owner of the vehicle at the time of the accident. He was clearly the absolute owner of it. The first defendant had then no proprietary interest in it as he had then not finished paying the N¢600.00 to the second defendant. I must next decide whether the first defendant was at the time of the accident the agent or servant of the second defendant acting in the course of his employment. In his able and learned address, Mr. Tetteh, counsel for the second defendant cited the cases of Laryea v. Annan [1964] G.L.R. 755, S.C.; Ormrod v. Crosville Motor Services, Ltd. [1953] 2 All E.R. 753, C.A. and Hewitt v. Bonvin [1940] 1 K.B. 188, C.A. and submitted that if even the vehicle belonged to the second defendant, the first defendant was not the servant of the second defendant at the time of the accident since there was no evidence that he had been employed by him or that the second [p.1154] of [1968] GLR 1150 defendant had reserved to himself the right of control and direction over the first defendant and also there was no evidence that a master and servant relationship subsisted between them at the time of the accident.

I wholly agree with Mr. Tetteh that the plaintiff failed to prove by direct evidence that the first defendant was the servant of the second defendant within the definition of “servant” at p. 97 of Salmond on Tort (11th ed.). That definition which received judicial approval in Hewitt v. Bonvin (supra at pp. 191-92) is this:

A servant may be defined as any person employed by another to do work for him on the terms that he, the servant, is to be subject to the control and directions of his employer in respect of the manner in which his work is to be done.”

It has however been held in many cases that where a plaintiff in an action for negligence proves that damage has been caused by the defendant’s motor car, the fact of ownership of the motor car is prima facie evidence that the motor car, at the material time, was being driven by the owner or his agent or servant in the course of his employment: see Hibbs v. Ross (1866) L.R. 1 Q.B. 534; Joyce v. Capel (1838) 8 C. & P. 370; Barnard v. Sully (1931) 47 T.L.R. 557 and Aboaku v. Tetteh [1962] 2 G.L.R. 165, S.C. In such a case the burden is on the defendant to prove that the person who was driving his motor car at the material time was not his agent or servant acting in the course of his employment. I must say at this stage that whilst the facts of Laryea v. Annan (supra) could support the judgment of the Supreme Court in the case, in my view, with all due respect to the learned judges who constituted the court, the court erred in dismissing the plaintiff’s claim inasmuch as it held that he had failed to lead evidence to establish conclusively the relationship of master and servant between the defendant and the person who was driving the defendant’s motor vehicle at the time of the accident when the defendant had admitted ownership of the vehicle. From the judgment it appears the case of Aboaku v. Tetteh (supra) which was binding on the court was not cited by counsel and it escaped their lordships. The judgment, or the part of it dealing with the burden on the plaintiff to prove that the driver was the servant or agent of the owner of the vehicle, was therefore given per incuriam. As Djabanor J. (as he then was) explained in the case of Kwarteng v. Sei [1966] G.L.R. 42 decided in this very court, the judgment of the Supreme Court in Laryea v. Annan (supra) was right because the defendant had by cogent evidence rebutted the presumption that the driver was his servant or agent which arose from the fact that he was the owner of the vehicle. [p.1155] of [1968] GLR 1150

Applying the principle discussed in the case to the facts of the instant case, once it has been established that the second defendant was the owner of the vehicle at the time of the accident and that the first defendant was the driver, the first defendant is presumed to be the agent or servant of the second defendant acting in the course of his employment at the time of the accident and the burden was on the second defendant to rebut that presumption. The evidence which the second defendant gave to show that the first defendant was not his driver at the time of the accident was that he had sold the vehicle in question to the first defendant and therefore the latter was his own master. Mr. Tetteh, counsel for the second defendant, in his address referred to clause (6) of exhibit 1 which states that in the event of an accident, the first defendant was to be responsible for the repairs and claims arising therefrom and submitted that that in itself showed that the first defendant could not be the servant or agent of the second defendant. I have already found, upon construction of clauses (2) and (3) of exhibit 1 that the vehicle in question belonged to the second defendant at the time of the accident. When the two clauses are read together with clause (6), it becomes clear that the first defendant could not have been the servant of the second defendant. If he were considered a servant, he would not have been required to bear the cost of repairs to the vehicle and to meet claims arising out of accidents in which the vehicle may be involved. On a true construction of the whole of exhibit 1 and from the second defendant’s evidence, I find that the vehicle No. WR 3646 was owned by the second defendant at the material time and that it was being driven by the first defendant with the permission of the second defendant upon their joint venture, the joint venture being the collection and payment of daily fares by the first defendant to the second defendant until the cost of the vehicle being N¢600.00 had been fully paid and thereafter the first defendant was to have the vehicle to himself. In Ormrod v. Crosville Motor Services Ltd. [1953] 2 All E.R. 753, C.A. the owner of a motor car gave his car to a driver to take it from Calais to Monte Carlo. The driver himself wanted to take his wife to Monte Carlo. An accident occurred in the course of the journey to Monte Carlo and in the ensuing civil suit for damages, Denning L.J. (as he then was) at pp. 754-755 said this on the liability of the owner of a vehicle who parts with it to another to drive: “It has often been supposed that the owner of a vehicle is only liable for the negligence of the driver if that driver is his servant acting in the course of his employment. That is not

[p.1156] of [1968] GLR 1150 correct. The owner is also liable if the driver is his agent, that is to say, if the driver is, with the owner’s consent driving the car on the owner’s business or for the owner’s purposes. In the present case the driver was, by mutual arrangement, driving the car partly for his own purposes and partly for the owner’s purposes. The owner wanted the car driven to Monte Carlo; the driver wanted to go with his wife to Monte Carlo, and he intended to visit friends in Normandy on the way . . . The law puts an especial responsibility on the owner of a vehicle who allows it to go on the road in charge of someone else, no matter whether it is his servant, his friend, or anyone else. If it is being used wholly or partly on the owner’s business or for the owner’s purposes, the owner is liable for any negligence on the part of the driver. The owner only escapes liability when he lends it or hires it to a third person to be used for purposes in which the owner has no interest or concern . . . The trip to Monte Carlo must be considered as a whole, including the proposed excursion to Normandy, and as such it was undertaken with the owner’s consent for the purposes of both of them, and the owner is liable for any negligence of the driver in the course of it.” In the end, therefore, I find that the second defendant is vicariously liable for the negligent driving of the first defendant and he is jointly and severally liable to satisfy the judgment debt and costs awarded against the first defendant.

DECISION

Defendants held jointly and severally liable to plaintiff.

L. F. A.