OBENG v. BOATENG AND OTHERS [1966] GLR 689

Division: HIGH COURT, ACCRA

Date: 28 OCTOBER 1966

Before: AMISSAH J.A.

CASES REFERRED TO

(1) Merlihan v. A. C. Pope, Ltd. [1946] K.B. 166; 173 L.T. 257; [1945] 2 All E.R. 449; 115 L.J.K.B. 90; 109 J.P. 231; 61 T.L.R. 508; 89 S.J. 359.

(2) Horden-Richmond, Ltd. v. Duncan [1947] K.B. 545; [1947] 1 All E.R. 427; [1947] L.J.R. 1024; 176 L.T. 332; 63 T.L.R. 193.

(3) Littlewood v. George Wimpey & Co., Ltd. and B.O.A.C. [1953] 2 Q.B. 501; [1953] 3 W.L.R. 553; [1953] 2 All E.R. 915, C.A. affirmed sub nom. George Wimpey & Co., Ltd. v. B.O.A.C. [1955] A.C. 169; [1954] 3 W.L.R. 932; [1954] 3 All E.R. 661; 98 S.J. 868, H.L.

(4) Harvey v. R. G. O’ Dell Ltd. [1958] 2 Q.B. 78; [1958] 2 W.L.R. 473; [1958] 1 All E.R . 657; 102 S.J. 196.

(5) Boyle v. Sacker (1888) 39 Ch.D. 249; 58 L.J.Ch. 141; 58 L.T. 822, C.A.

NATURE OF PROCEEDINGS

SUMMONS FOR DIRECTIONS in the action between the plaintiff and the second defendants and for third party directions between the second defendants and the third parties. The facts are sufficiently set out in the ruling of Amissah J.A. sitting as an additional judge of the High Court.

COUNSEL

Osei Bonsu for the plaintiff.

E. L. Cole for the second defendants.

H. P. Swaniker for the third parties.

JUDGMENT OF AMISSAH J.A.

Before me are two sets of applications. The first is a summons for directions in the action between Margaret Obeng, the plaintiff and Starco Transport the second defendants, interlocutory [p.691] of [1966] GLR 689 judgment having been obtained by the plaintiff against Samuel K. Boateng, the first defendant upon the failure of the latter to appear to the writ. The second is an application for third party directions brought by the second defendants as a result of their service of a third party notice on Nana Fredua Mensah and Napado Company as third parties.

The case is one of negligence arising out of a collision of one vehicle into another on the highway. The plaintiff, on 23 February 1966, after the second defendants had served their defence on her, filed a summons for directions which stated the negligence of the first defendant, alleged to be the driver and servant of the second defendants’ vehicle at the material time of the accident, as one of the issues for determination. But when subsequently an interlocutory judgment was obtained against the first defendant, the plaintiff on 5 July 1966, filed additional summons for directions in which her counsel now claims before me must be found all the issues left for determination between the plaintiff and the second defendants. For convenience I set these issues out in extenso. They are as follows:

“(a) Since, interlocutory judgment has been obtained herein against the first defendant who was the driver and servant of the second defendants, whether the second defendants are not vicariously liable to the plaintiff in damages for the negligence of the first defendant.

(b) If so, what is the quantum of damages?”

The plaintiff’s claim therefore is that once interlocutory judgment has been obtained against the first defendant who had been sued as the primary tortfeasor, the sole question remaining for consideration apart from the assessment of damages, is the vicarious liability of the second defendants for the first defendant’s tort. The position of the second defendants is that, they in their own defence had denied negligence and that the interlocutory judgment, at best a technical victory, was obtained even without notice to them. They further say that the first defendant had left their service by the time the action was brought against them and that eventually service was effected on the first defendant, not personally but in substituted form. Though they admit that this does not detract from the judgment, they claim that it does aggravate the prejudice their case has suffered and they ask therefore that they should not be debarred from putting the plaintiff to strict proof of the alleged negligence. Having regard to the state of the pleadings, I am of the view that whether the interlocutory judgment in default of appearance obtained against the first defendant precludes the second defendants from raising matters arising out of the defence which they filed before that judgment, is in itself a

[p.692] of [1966] GLR 689 question which should be decided by the trial judge. I therefore, invited the parties to consider whether their contentions could not be satisfactorily met by a re-framing of the issues in the following manner: “(a) Since interlocutory judgment has been obtained herein against the first defendant who was the driver and servant of the second defendants, whether, apart from the issue as to damages, the sole question remaining for determination between the plaintiff and the second defendants is the vicarious liability of the second defendants for the negligence of the first defendant.

(b) whether the second defendants are not vicariously liable to the plaintiff in damages for the negligence of the first defendant.

(c) If so, what is the quantum of damages.

(d) Any other issues arising out of a determination of issue (a) above.”

These issues are acceptable to the parties and I accordingly order that they be the issues set down for trial between the plaintiff and the second defendants in this case. I also order that the registrar should fix a date for the hearing of the case.

By a motion filed on 1 March 1966, the second defendants sought leave of the court to issue and serve a third party notice on Nana Fredua Mensah and Napado Company. Leave was granted on 8 March 1966 and the notice was duly issued and served on the third parties. The second defendants now ask for third party directions to be given at the hearing of the summons for directions between the plaintiff and the defendants. Counsel for the third parties, Mr. Swaniker, has raised two preliminary objections each of which he claims would dispose of the second defendants’ endeavour to bring the third parties into the action The first is that having already paid the plaintiff privately there is no question of asking the third parties to contribute to any damages which the second defendants may be called upon to bear. Secondly, that the right to ask for contribution should according to section 13 of the Civil Liability Act, 1963,1 be exercised within two years of the date from which the cause of action accrued. The cause of action in this case, he contends, accrued in December 1963, namely, the time of the accident which has led the plaintiff to bring her action against the defendants, but the claim for contribution was filed on 27 June 1966, that is, over two and a half years after the cause of action accrued. He therefore asks that the third parties be struck out with heavy costs. Incidentally the third

[p.693] of [1966] GLR 689 party notice was filed on 7 April, and served on 20 April 1966. The date put forward in the submission is the date on which the second defendants filed a statement of claim in the third party proceedings. I do not think that the payment by the third parties to the plaintiff of money, whatever the amount, in settlement of her claim would, even if I were to pay attention to that fact at this stage, dispose of the third party proceedings. The basis of this payment is not known to me. Did the third parties admit negligence or did they not? If they did, was it as the sole cause of the injury to the plaintiff or only as a contributory. And if as a contributory, what proportion of the damage did the payment by the third parties represent? Why has the plaintiff chosen to bring the action against the defendants in terms which suggest that theirs is the sole responsibility for her misfortune? Questions like these would certainly affect at least the extent of the second defendants’ liability to the plaintiff. They are unanswered. I am, therefore, of the opinion that the mere payment by the third parties of the money to the plaintiff does not conclude matters between the money to second defendants and the third parties. This submission on behalf of the third parties, therefore, fails.

With regard to the question of limitation, section 13 of Act 176 provides as follows: “An action to recover contribution shall not be brought after the expiration of two years from the date on which the cause of action accrued.” On this, the third parties formulate the argument that no action for contribution shall be brought after two years from the date of the incident which gave rise to the plaintiff’s claim. But the hurdle that this argument has to clear is this: if the action is brought to recover contribution, to what is this contribution to be made? Obviously it is contribution to the damages the defendant is liable to pay. Suppose a defendant disputes the claim, until this issue is determined, can it be said that there is a liability to pay damages to which another may contribute? I do not think so. The defendant may very well be adjudged blameless. To me it is only from the time when the defendant admits liability or is adjudged liable in court that his entitlement to contribution commences. It is only from then that time under section 13 of Act 176 begins to run against the defendant.

I have derived great assistance from the authorities cited by Mr. Cole on behalf of the second defendants on this issue. I can find only one which supports the contention of Mr. Swaniker. In Merlihan v. A. C. Pope, Ltd.,2 the defendants sought contribution from a third party, Pagnello, who happened to be a public officer. Birkett J. held that the Limitation Act, 1939,3 which debarred action against public [p.694] of [1966] GLR 689 officers after a year of the act or omission complained of deprived the defendants of the right to contribution because the cause of action accrued at the time of the accident which was caused by the negligence of the defendants’ servant and Pagnello. The third party proceedings by the defendants were brought within a year of the judgment establishing the defendants’ liability. Birkett J. confessed4: “The point is a new one; it has never been determined, and no real guidance on it exists.” Subsequent cases have held that Birkett J.’s view was wrong. In Horden-Richmond, Ltd. v. Duncan5 Cassels J. first cast doubt on the view of Birkett J. when he said6:

“One has to bear in mind that third-party proceedings are proceedings in the nature of a separate action brought by a defendant against a third party, in which the cause of action is by no means necessarily the same as the cause of action which brings the plaintiff and the defendant before the court. The cause of action which brings a plaintiff and a defendant before the court in such a case as may arise out of this accident is negligence. The cause of action which entitles a defendant to bring a third party before the court is the liability of the third party to make contribution or to pay an indemnity. That cause of action has not arisen until the liability of the defendant has been ascertained.”

Later he said this of the third party procedure7:

“It is out of the peculiarities of that procedure which enables this [i.e. the claim to contribution] to take place before there is any liability. But the plaintiff can never get a judgment against the third party; it is only the defendant who gets a judgment against the third party. Neither, in such proceedings, could the defendant succeed and yet leave the plaintiff with judgment against the third party. It is only on the defendant being made liable that the defendant has any cause of action against the third party.”

Cassels J.’s view of the matter is now supported by a host of authority in the English courts. To mention some: see Littlewood v. George Wimpey & Co., Ltd., and B.O.A.C.8 which on appeal to the House of Lords became George Wimpey & Co., Ltd. v. B.O.A.C. and Harvey v. R. G. O’ Dell Ltd.9 It is true that in the Littlewood case both the

[p.695] of [1966] GLR 689

Court of Appeal and the House of Lords held that the defendant was not entitled to recover contribution from the third parties because a reading of the provisions of section 6 (1) (c) of the Law Reform (Married Women and Tortfeasors) Act, 193510 (which conferred the right on a tortfeasor to recover contribution), and section 21 of the Limitation Act, 1939 (which barred action against public authorities after a year of the act or omission complained of), made it impossible for the defendant to recover contribution from a public authority, namely, B.O.A.C. But this decision was based solely on the peculiar wording of the English Act. That Act provides that a tortfeasor may recover contribution from “ any other tortfeasor who is, or would if sued have been, liable in respect of the same damage.” (The emphasis is mine.) In the Littlewood case, apart from the defendant bringing the third party proceedings against B.O.A.C., the plaintiff at a later date joined the same B.O.A.C. as co-defendants. B.O.A.C. pleaded section 21 of the Limitation Act, 1939, to both the plaintiff ‘s claim and the third party proceedings. The courts held that as B.O.A.C. were actually sued and found not liable as against the plaintiff, even though only on the ground that the Limitation Act applied, B.O.A.C. cannot be described as a “tortfeasor who is, or would if sued have been liable” to enable the defendant to succeed against them as third parties. They had actually been sued and been found not liable. Presumably had B.O.A.C. not been joined by the plaintiff as co-defendants, the defendant’s third party proceedings would have succeeded. It was, however, agreed that the defendant’s cause of action accrued from the time that he was found liable, not from the date of the accident.

I agree with Mr. Swaniker that we have got our own law on the question of contribution and that the ordinary principles of interpretation in this country must be applied. Accepting that proposition, I nevertheless take the view that the action to recover contribution in section 13 of Act 176 is an action to be brought by a defendant who has been originally called upon to make up the whole damage and has admitted liability or been found liable by a court. The cause of action to recover contribution does not accrue until the defendant could show that he is a tortfeasor liable to the plaintiff. I do not think that the view I hold does violence to either our law on contribution or the canons of interpretation known in this country. I was not shown any Ghanaian authorities to the contrary. Neither have I found one. On Mr. Swaniker’s submission that there may not be a limitation provision in the English Act, I will even go further and say there is

[p.696] of [1966] GLR 689 not. But the cases discussed illustrate the principles where particular provisions on limitation are read together with the provisions conferring a right on the defendant to recover contribution. In the result I would say that the situations are not dissimilar. To his submission that there is no provision in the English Act whereby a joint tortfeasor could be brought before the court by way of third party procedure, it is enough to say that the court rules both in England and in Ghana sometimes set up the machinery by which rights conferred by substantive legislation are to be enforced. The third party procedure is designed to avoid a multiplicity of actions. Instead of the defendant who disputes liability waiting for the court to decide that he is liable before bringing his action to recover contribution, he proceeds against the contributor by way of third party notice in effect claiming, “I am not liable but should the court hold that I am, then you (the third party) are liable to indemnify me or to contribute to the damages which I have to pay.” The submission of the third parties in this case on the issue of limitations also fails. I have noticed that the second defendants filed a statement of claim in the third party proceedings to which the third parties filed a defence, although there is no record of their having entered an appearance to the third party notice. The filing of pleadings was premature. I am, therefore, ignoring the pleadings at this stage and ordering that pleadings be properly filed: The second defendants to file a statement of claim within a week and the defence of the third parties and other pleadings to take the normal course. Although the third parties did not formally enter an appearance, they have taken sufficient part in the application for directions to stop anyone from complaining about their failure technically to comply with the provision on entry of appearance: see Boyle v. Sacker.11 The registrar in fixing a date for the hearing of the case as ordered on the summons for directions between the plaintiff and the second defendant, should have regard to this direction of the filing of pleadings in the third party proceedings.

No order as to costs.

DECISION

Hearing to proceed.

S. K. T.