FAKAA v. DUAH AND ANOTHER [1966] GLR 394

Division: HIGH COURT, SUNYANI

Date: 31 MAY 1966

Before: HAYFRON-BENJAMIN J.

CASES REFERRED TO

(1) Wakefield Local Board of Health v. Lee (1876) 1 Ex.D.336; 35 L.T. 481; 41 J.P. 54, C.A.

(2) Attorney-General v. Winstanley (1831) 2 Dow & C1. 302; 9 L.J. Ex. (o.s.) 92; 6 E.R. 740, H.L.

(3) Grenfell v. Inland Revenue Commissioners (1876) 1 Ex.D. 242; 45 L.J.Q.B. 465; 34 L.T. 426; 24 W.R. 582.

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

NATURE OF PROCEEDINGS

ACTION by the plaintiff, administratrix of the estate of her deceased sister, against the defendants for and on behalf of the dependents of the deceased for damages. The facts are sufficiently set out in the judgment.

COUNSEL

P.D. Anin for the plaintiff.

T.K. Aboagye for the defendants.

JUDGMENT OF HAYFRON-BENJAMIN J.

The plaintiff claims as administratrix of the estate of Adjoah Fumah of Nyame, for herself and twelve dependents against the defendants jointly and severally, the sum of £G5,000 whereof £G350 represents special damages and £G4,650 represents general damages, for the negligence of the second defendant in [p.396] of [1966] GLR 394 negligently driving the first defendant’s taxi car No. AT 2812. The claim was later amended and raised to £G6,000.

The plaintiff’s case is that, on 2 April 1965 at about 8.30 p.m. Adjoah Fumah was walking towards New Drobo along the grass verge bordering the offside portion of the Japekrom—New Drobo road when she was struck by the taxi car belonging to the first defendant and driven by the second defendant which was also travelling in the same direction along the same road towards New Drobo. As a result of being struck and knocked down, the said Adjoah Fumah received fatal injuries. The accident, the plaintiff claims, was due to the negligence of the second defendant who was then acting in the course of his employment as a driver and servant of the first defendant. The second defendant was prosecuted on charges of careless driving and negligently causing harm to Adjoah Fumah before the District Court, Berekum, on 3 May 1965. He admitted liability in open court by pleading guilty to both charges. The plaintiff relies inter alia on the doctrine of res ipsa loquitur.

Adjoah Fumah was 40 years old just prior to her death and was in very good health. She was in receipt, the plaintiff claims, of an annual net income of at least £G500 from farming and the selling of foodstuffs; and she spent not less than £G300 per year on her dependents who numbered thirteen. As a result of her death, these dependents have lost the benefit of the maintenance and support given by the deceased to them; and they have all suffered mental distress. The hospital, transport and funeral expenses total £G350. The defendants deny negligence and contend that the second defendant, who was admittedly in charge of the vehicle, swerved to the offside to avoid knocking down a cyclist who suddenly crossed the road in front of the taxi. It was, they say, during this process that Adjoah Fumah, the deceased was knocked down. They deny that there is any room for the application of the doctrine of res ipsa loquitur and further deny that they are estopped from denying negligence in a civil action by virtue of the plea of guilty to criminal charges of careless driving and negligently causing harm in a criminal court. This is the same accident which gave rise to the claim in suit No. HC. 39/65. The plaintiff in that case (who is the son of Adjoah Fumah the victim in this case) and his mother were walking along the road, when the defendant’s vehicle struck them from behind. The plaintiff in that case suffered injuries which fortunately did not prove fatal. Adjoah Fumah’s injuries resulted in her death. The trial has taken a similar course. The second defendant, the driver of the vehicle was not called: the phantom cyclist has remained a phantom. I am satisfied that in the circumstances of this case, it was [p.397] of [1966] GLR 394 for the defendants to explain how the accident could have happened without negligence on the part of the second defendant. This they have failed to do. The defendants at no time during the trial seriously disputed the issue of negligence. From the evidence I am satisfied beyond a shadow of a doubt that the second defendant negligently drove his vehicle and that that negligence on his part was the sole cause of the accident resulting in the death of Adjoah Fumah. There is also clear proof and the admission by the first defendant that the accident occurred while the second defendant was driving in the course of his employment as a driver and servant.

The claim has been gallantly defended on two grounds, the first dealing with and being more relevant to the quantum of damages payable, and the second being more fundamental, and dealing with the competency of the suit. I shall deal with the second point first. It is set out in paragraph (7) of the statement of defence, which I here produce: “Defendants aver that the claim of the plaintiff was settled with the British India Assurance Company Limited, the insurers of the said vehicle No. AT 2812, through Mr. A. C. Kuma, the solicitor for the said insurance company, acting for and on behalf of the defendants. One A. A. Munufie, solicitor, then acted for and on behalf of the plaintiff. The plaintiff’s said solicitor agreed to accept the sum of £G500 from the first defendant’s said insurers in full and final settlement of all claims, losses, etc. suffered or to be suffered by the plaintiff and all the dependents of the deceased as a result of the said accident. On or about 14 July 1965, the plaintiff in pursuance of the said agreement signed a discharge form accepting the sum of £G500 (¢1,200.00) in full and final settlement of all claims, demands, losses, etc. suffered or to be suffered by the said plaintiff and all the dependents of the deceased as a result of the said accident. On 26 November 1965, the said British India Assurance Company Limited sent its cheque to the plaintiff’s solicitor in payment of the said sum of £G500 (¢1,200.00) together with the sum of £G200 for the plaintiff in suit No. HC.39/65.” In answer to this pleading, the plaintiff replied. She said:

“In reply to paragraph (7) of the defence, the plaintiff denies emphatically that her claim was settled with the British India Assurance Company Limited as pleaded, or otherwise. In further denial of paragraph (7) of the defence, the plaintiff will aver that her solicitor wrote a letter marked ‘without prejudice’ to the said British India Assurance Company Limited, to start

[p.398] of [1966] GLR 394 off negotiations with a view to the settlement of the claim; and that in reliance thereupon, more documents and oral communications passed between the parties which did not however end in a final settlement of the claim and/or acceptance of any compromise sum. The plaintiff avers that the said letter marked ‘without prejudice’ together with all subsequent parts of the same correspondence on both sides and oral communications made by the parties’ solicitors during the said abortive negotiations are in law privileged from disclosure and inadmissible in evidence.”

It transpired during the trial that the plaintiff obtained letters of administration and therefore became an administratrix on and from 4 December 1965. It was also established that the cheque sent by the British India Assurance Company Limited on 26 November 1965 was rejected by the plaintiff’s solicitor and was sent back to the company uncashed. The plaintiff also avers in her statement of claim that the deceased, Adjoah Fumah, was survived by the thirteen dependents excluding the plaintiff. All the dependents except two, namely, Kwabena Donkor and Afua Afra, are infants. In respect of these infants it is necessary to consider the provisions of Order 22, r.9 (1) and (7) of the Supreme [High] Court (Civil Procedure) Rules, 1954.1 Rule 9 (1) provides:

“9. (1) In any cause or matter in the Supreme Court and in any Admiralty action in which money or damages is or are claimed by or on behalf of an infant or a person of unsound mind suing either alone or in conjunction with other parties, no settlement or compromise or payment or acceptance of money paid into Court, whether before or at or after the trial, shall as regards the claims of any such infant or person of unsound mind be valid without the approval of the Court or a Judge.”

Rule 9 (7) provides:

“9. (7) The provisions of this rule shall also apply to all actions in which damages are claimed or recovered by or on behalf of or adjudged or ordered or awarded or agreed to be paid to an infant or person of unsound mind under the Fatal Accidents Acts, 1846 as amended prior to 1874 and also to money which under those Acts is recovered by or adjudged to be paid to the widow of the person killed as they apply to money recovered by or adjudged or ordered to be paid to an infant. Where such proceedings are taken by or for the benefit of more than one person and the amount recovered is to be divided

[p.399] of [1966] GLR 394 amongst such persons the Judge shall divide and apportion the share to be paid to each of the said persons and the amount so apportioned shall be specified in the order or judgment made or directed in the Supreme Court.”

The Fatal Accidents Acts, 1846,2 and the subsequent amending Acts prior to 1874 have been repealed and substantially re-enacted by the Civil Liability Act, 1963.3 The relevant provisions in the Rules of Court have not been specifically amended. However section 6 (2) of the Interpretation Act, 1960,4 provides that: “Where an enactment is repealed or revoked and another enactment is substituted, by way of amendment, revision or consolidation, a reference to the repealed or revoked enactment shall be construed as a reference to the substituted enactment.” Rule 9 (7) of Order 22 of the Rules of Court therefore is applicable to proceedings such as this, under the Civil Liability Act, 1963. The settlement as far as it is in respect of the claims of the infants is not valid, unless it is approved by this court. The alleged settlement was £G500 for all claims, i.e. including the claims of infants and adults. It is difficult to aver and ascertain the amount offered as compensation for the claims of the infants. In any event even if the whole £G500 had been offered in settlement for the claims of the infants alone I would not have approved it. Nothing has been urged before me to show that it was in the interests of the infants to accept £G500 as compensation for the loss of their mother. The sum offered is so inadequate, that I do not know by what criteria that sum was arrived at. I am satisfied that it is not in the interest of the infants that this court should approve such a settlement. As far as the adults are concerned, I cannot here also sever and determine how much of the sum of £G500 was meant for them. I must therefore reject the alleged settlement in respect of them also.

The evidence is clear and unchallenged that the deceased Adjoah Fumah left some dependents: the dispute is as to the identity of those dependants. The evidence adduced that she had four children and a brother and a sister, the plaintiff, has not been seriously challenged in cross-examination, and I accept it. I find that the deceased was survived by four children, namely, Godfred Adu Takyi, Kwaku Bene, Kwabena Bae and Kwame Agyei, aged nineteen, sixteen, fourteen and nine years respectively. I further find that she was survived by a brother Kwabena Donkor and a sister, the plaintiff. I am satisfied that all the children were dependent on the earnings of the deceased.

[p.400] of [1966] GLR 394

The claim is also brought on behalf of one Afua Afrah, and her two children, Kwadwo Diawuo and Kwabena Takyi, aged 55, eighteen and fifteen years respectively, and the five children of another person Yaa Mansa, namely, Akua Donkor, Kwame Boanu, Kwabena Sekyere, Issa Kwaku and Ansu Kwabena, aged one, ten, eight, five and four years respectively. It is of primary importance, if the Civil Liability Act, 1963, is not to be defeated that claims are sustained only in respect of those who fall within the definition of dependants under the Act. The burden of proof that a person for the benefit of whom an action is brought is within that definition is on the plaintiff. Section 15 of the Civil Liability Act, 1963, provides:

“15. In this Part —

‘dependant’, in relation to a person whose death is caused by a wrongful act, includes —

(a) any member of the family of the deceased, and

(b) any other person whom he was by reason of adoption under the Adoption Act, 1962 (Act 104) or otherwise obliged to maintain and who suffers loss or mental distress as a result of the death; ‘member of the family’ means —

(a) when used in relation to a citizen of Ghana anyone of those persons mentioned in the First Schedule according as the family is based on the paternal or maternal system . . .” It is not disputed that the family of the deceased falls under the maternal system. The First Schedule provides that under the maternal system, the following are contemplated by the Act: “Mother, father, wife, son, daughter, brother, sister, mother’s mother, mother’s brother, mother’s sister, sister’s son, sister’s daughter, mother’s sister’s son, mother’s sister’s daughter.” It is clear that the term “member of the family” as used in the Act is in some respects wider than the meaning under customary law, including as it does the wife and children, and in other respects it is more restrictive, excluding many who would under customary law be considered as members of the deceased’s family. The mere fact therefore that a person is a member of the family does not necessarily make him a dependant, and on the other hand non-membership of the family per se does not debar a person from claiming, if he can otherwise bring himself within the provisions of the Act. Under the Act, a person who does not come within the definition of member of family can yet be considered a dependent if the deceased was obliged to maintain him and he has suffered loss or mental distress as a result of the death.

[p.401] of [1966] GLR 394

The word “oblige” in section 15 of the Civil Liability Act connotes a legal and not merely a moral obligation to maintain. For example, on the death of a guardian an action can be brought for the benefit of his ward, because a guardian is obliged by section 79 of the Criminal Code, 1960,5 to supply his ward with the necessities of health and life. Again an action can be maintained on behalf of apprentices for the death of their master if the master had agreed to provide them with food and other necessaries of life and health: see section 79 of Act 29. Again an action can be maintained for the benefit of children in the event of the death in an accident of their father’s successor, because he is under a duty under customary law to maintain them.

The evidence adduced before this court is that the deceased was survived by three sisters, the plaintiff, Afua Afrah and Yaa Mansa and their respective children. This evidence was not challenged in cross-examination. It is however on the records of this court, that in the application for letters of administration the plaintiff swore that she is the only uterine sister of the deceased. She further deposed on oath to the fact that the deceased left seven children. She has not been cross-examined on this affidavit, and the affidavit itself is not in evidence, but as I have said it is on the records of the court. It was long ago that Hayes Redwar drew attention to the loose manner in which the terms sister, brother, etc. are used in Ghana. He said in his invaluable Comments on some Ordinances of the Gold Coast Colony at p. 85 that:

“In considering evidence given by illiterate natives at the Gold Coast, care must be taken not to be misled by the elasticity of the terms of relationship in use amongst them. The meaning of a term of relationship should not in such cases be confined to its English legal import, as, strictly speaking, the English meanings of the various words expressing relationship are not the same amongst a people who not only are not married according to the English law of matrimony, but also whose law and customs may be said to rest on a basis of polygamy, leading to relationships wholly unrecognisable in English law. Amongst natives the terms of relationship are of the most elastic character e.g., a man who purchases a boy as slave calls him a ‘son’, and the boy slave calls him ‘father.’ In a Court of Justice they swear that such is the relationship between them; but they do not intend to convey that they are ‘father’ and ‘son’ in the English sense.” [p.402] of [1966] GLR 394

I think that when the plaintiff said on oath that Yaa Mansa and Afua Afrah are the sisters of the deceased she used the term in the extended sense and did not mean that they are sisters of the same blood. The question then arises whether they fall within the meaning of the word “sister” as used in the First Schedule to the Civil Liability Act. As Grove J. said in Wakefield Local Board of Health v. Lee6: “Except in mathematics, it is difficult to frame exhaustive definitions of words . . . “ The ordinary grammatical or dictionary meaning of the word sister is “daughter of the same parents.” Strictly speaking the word “sister” used simpliciter and unqualified does not include half-sister.

The Concise Oxford Dictionary (4th ed.) at p. 1172 however gives another meaning of the word sister. It says “sister . . . Close female friend, female fellow member of class or sect or human race.” It is however a rule of construction that general statutes will prima facie be presumed to use words in their popular sense. As Lord Tenterden said in Attorney-General v. Winstanley,7 “the words of an Act of Parliament which are not applied to any particular science or art, we are to construe them as they are understood in common language . . .”

I am quite satisfied that the word sister in common language does not mean close female friend or female fellow member of a class or sect of the human race. However, it is a rule of construction that words used much have the meaning attached to them in Ghana and not in England. “Wife” for example means a different thing in Ghana from what it means in England. But Pollock B. said in Grenfell v. Commissioners of Inland Revenue,8 that if a statute contains language which is capable of being construed in a popular sense, such a “statute is not to be construed according to the strict or technical meaning of the language contained in it, but that it is to be construed in its popular sense; meaning, of course, by the words ‘popular sense’ that sense which people conversant with the subject matter with which the statute is dealing would attribute to it.”

Now the term “mother” is used in Ghana to include one’s mother’s sister. “Mother’s sister” had been specifically mentioned in the Schedule. The term “father” is used to include father’s brother. “Father’s brother” has been specifically mentioned. It means therefore that the legislature intended the words used in the Schedule to bear their strict meaning. The word “sister” must therefore be interpreted to mean a daughter of the same parents, and does not include relatives who are [p.403] of [1966] GLR 394 called sisters in the extended use of the term. It is not necessary for the decision of this case to consider whether the term “sister” as used in the Schedule includes “half-sisters.” I hold therefore that Afua Afrah and Yaa Mansa are not sisters of the deceased within the meaning and contemplation of the Civil Liability Act, 1963. There is no evidence that they fall within any of the other categories mentioned in the Schedule to the Act. They have not established that the deceased was under any obligation to maintain them. The claim on their behalf must therefore fail.

It seems from the evidence that the deceased was a woman and a mother who kept an open house to the members of her extended family. Most of her relatives are farmers. She was a farmer and in addition made kenkey. It is not surprising therefore that the children of her sisters and relatives who lived in the same village and others who lived in other villages repaired to her home for meals. She was generous to them, but that does not import a legal obligation to maintain them. I must hold therefore that the children of Yaa Mansa and Afua Afrah not falling within the terms “sister’s son” or “sister’s daughter” as used in the First Schedule of the Act, and not having established any obligation on the part of the deceased to maintain them, must also fail in this action.

We are therefore left with the claims on behalf of the deceased’s children, her brother Kwabena Donkor and the plaintiff herself. These persons clearly fall within the term “member of the family” as defined by section 15 of the Civil Liability Act, 1963. These persons are deemed dependents and do not have to prove any loss to entitle them to sue. Those who have to establish or prove loss are those other persons whom the deceased was obliged to maintain, and who fall within the provisions of section 15 (2) of the Civil Liability Act, 1963. The plaintiff therefore can maintain this action whether or not she personally has in fact suffered any loss or not. Damages can, however, be recovered only on behalf or for the benefit of those who have actually suffered loss. This means that where a person dies in an accident, and is survived by children, the deceased’s father can maintain an action for the benefit of the children, even though he himself was not in fact dependent on the deceased son. He cannot however recover anything on his own behalf or for his own benefit. The damages can only be awarded for the children. This I think is the correct meaning of the provisions of section 18 (1) when read together with those of section 15 of the Act.9 Section 18 (1) provides:

[p.404] of [1966] GLR 394

“18. (1) The damages under section 16 of this Act shall be—

(a) the total of such amounts (if any) as the court considers proportionate to the loss resulting from the death to each of the dependants, respectively, for whom or on whose behalf the action is brought, and

(b) subject to subsection (2), the total of such amounts (if any) as the court shall consider reasonable compensation for mental distress resulting from the death of such dependants.”

It seems therefore that there must be evidence of the loss sustained by each dependant as a result of the death. This however does not mean that each dependant must be called to testify on oath; a baby child who cannot speak will be in an impossible position. It only means that there must be some evidence of the amount which the deceased would have reasonably expended for the dependants’ maintenance, had she not died, and this evidence can be given by anyone who has personal knowledge of the amount of the deceased’s earnings in her lifetime and how she spent it. The words of Akufo-Addo J.S.C. in Amakom Sawmill & Co. v. Mansah10 are relevant. The learned judge said:

“In this country where the majority of the people are farmers and illiterate the initial process of ascertaining the earnings of a deceased person, except in the case of a professional man or a salaried employee, presents almost insuperable difficulties, and adequate results can hardly be achieved by insisting on the wife and children of a deceased person producing figures regarding the earnings of a deceased person.” The learned judge later goes on11 : “As juries do not try civil cases in this country, the burden of assessing damages falls entirely on judges, and judges may well cultivate a little of the mental attitude of juries to such matters.” The courts in my view must have some idea and endeavour to ascertain as nearly as possible the total earnings of the deceased; they then have to take into account the general circumstances of the life of the deceased, her habits, etc, and ascertain how much she would reasonably have spent on her children and herself.

The crux of the matter therefore is how much did the deceased earn in her lifetime. The evidence is that she had two cocoa farms and some foodstuff farms. She also made kenkey for sale. Her average annual income was stated to be about £G500. There has

[p.405] of [1966] GLR 394 been no challenge to this piece of evidence. The evidence is that she looked after her own children, even though they all stayed together with the father and husband who is still alive. There is no evidence that she spent what she got from trading in kenkey or from her farms on anything else other than the support and maintenance of her children and herself. She kept an open house, but the mere fact that her children always brought in their younger cousins and relatives to partake of their food in the house does not mean that the money was not spent for the maintenance of the children. The evidence of Adu Takyi that he was solely dependent on the mother was not challenged. He has been sent to a secondary school by the mother, and there is evidence that the next boy who has completed middle school cannot continue his education because of the death of the mother. I am satisfied that if the mother had lived, there is the reasonable probability that she would have sent or endeavoured to send all her children to secondary school. She seems to me to have been a woman who sacrificed in order to enable her children to have the education and other things, which neither herself nor her husband had the opportunity to obtain. I assess the amount which she reasonably spent on her children to be £G360 per annum on the average. She was, according to the evidence which was not challenged, about 40 years old at the time of her death. She was in good health. She may have lived to the age of 60 but for this accident. She would have spent more as the three younger children approached secondary school age, and at the same time she would have stopped spending on the eldest son. I do not think her financial obligations would have fallen below £G360 until the second son had become as it were emancipated. Even then her expenditure on the remaining two would not be appreciably less. I shall take fifteen years as the year of purchase and tax the resulting figure of £G5,400 down to £G4,000.

The funeral and other expenses incurred for the burial I assess at £G350. The deceased seemed to have been one of the mainstays of her family, and I am sure that the family as is the custom of the land gave her a decent burial. I award each of the children £G150 for mental distress. I award the plaintiff and Kwabena Donkor each the sum of £G200 for mental distress. In the result I award the sum of £G5,350 damages which will be apportioned as follows:

To the plaintiff: £G200 and £G350 for funeral expenses making a total of £G550.

The brother Kwabena Donkor: £G200 for mental distress.

The son Adu Takyi: £G150 for mental distress and £G400 for loss resulting from death of mother making £G550.

[p.406] of [1966] GLR 394

To Kwaku Bene: £G150 for mental distress and £G800 for loss resulting from death of mother making £G950.

To Kwabena Bae: £G150 for mental distress and £G1,200 for loss resulting from death of mother making a total of £G1,350.

To Kwame Agyei £G150 for mental distress and £G1,600 for loss resulting from death of mother making a total of £G1,750.

The plaintiff will have her costs which I assess at 250 guineas inclusive of counsel’s fees of 200 guineas.

DECISION

Judgment for the plaintiff.

S. K. T.