ADDAI vs. BOAKYE II [1962]DLHC1317

Date	1962-11-19
Suit No.
Citation No.	[1962]DLHC1317

APALOO J.

ACKUN FOR D.S. EFFAH FOR THE PLAINTIFF.

DEFENDANT IN PERSON.

[1962]DLHC1317
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													<main id="main" class="content" style="min-height: 60rem" ><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">ADDAI <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">vs. <o:p></o:p><span style="font-size:12.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0">BOAKYE II<o:p></o:p><span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#548DD4">&nbsp;[HIGH COURT, KUMASI]<o:p></o:p>[1962] 2 GLR 147<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:31.0pt 31.0pt 1.0pt 31.0pt;mso-border-shadow:yes">

DATE:<span style="font-size:10.0pt;line-height:115%;font-family:&quot;Book Antiqua&quot;,&quot;serif&quot;;
mso-fareast-font-family:&quot;Book Antiqua&quot;;mso-bidi-font-family:&quot;Book Antiqua&quot;;
color:#00B0F0"> 19TH NOVEMBER, 1962.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

ACKUN
FOR D.S. EFFAH FOR THE PLAINTIFF.<o:p></o:p>

</div>CORAM: <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid black 1.5pt;
padding:0in 0in 0in 0in">

APALOO J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF
APALOO, J.<o:p></o:p>The facts of this case are entirely free from complexity. I find
them to be as follows: The deceased was a farmer and was at the date of his
death in his early forties. He was a food farmer on a fairly substantial scale.
His wife was Abena Afra with whom he had six children. His wife and children survived
him. The defendant is a chief of Ejura and owned, at any rate in July 1961, a
private car. Although he said he knew how to drive, he was at the said date
unlicensed. The number of the car is given as AN 4251.<o:p></o:p><o:p>&nbsp;</o:p>About 5 p.m. on the 26th July, 1961, the defendant backed his car
in an open space speedily and without looking back. In so doing, he knocked
down the deceased who was walking towards the rear of the car. The deceased
sustained injuries and died on the way to hospital. I feel no doubt whatsoever that
the defendant was negligent and that his negligence resulted in the death of
the deceased. It was pleaded in the statement of defence that the deceased was
guilty of contributory negligence. No evidence was led in support of this
averment which was traversed. I find no evidence of contributory negligence on
the part of the deceased. I hold that the defendant was solely to blame for the
accident.<o:p></o:p><o:p>&nbsp;</o:p>There is some dispute as to the status of the plaintiff. On the
whole, I prefer the evidence that the plaintiff is the successor of the
deceased and was so appointed by his elder brother Kwasi Anomako who is the
head of the family. The plaintiff is entitled in accordance with custom to be
appointed to step into his brother’s shoes. He was clearly the obvious choice.
I am satisfied the plaintiff has a locus standi in this action, he being the
customary successor of the late Kwasi Menka.<o:p></o:p><o:p>&nbsp;</o:p>The plaintiff’s claim is on two limbs. The first claim is for the
benefit of the estate, the second is on behalf of the dependants of the
deceased who have lost the breadwinner of the family. The first limb of the
claim is based on the common law, the second on the Fatal Accidents Act,
1846,1(1) as amended by the Law Reform (Civil Wrongs) Act, 1959.2(2) In the
absence of any legislation in Ghana analogous or equivalent to the English Law
reform (Miscellaneous Provisions) Act, 1934,3(3) the first limb of the claim is
not maintainable in this country. Such action is barred by the actio personalis
moritur cum persona rule. I so held in the case of El-Rouh v. Hamil.4(4) The
action founded on the Fatal Accidents Act is maintainable in so far as it can
be established that any relatives or near relatives of the deceased have been
deprived of their breadwinner or of partial means of support by the death of
Kwasi Menka.<o:p></o:p><o:p>&nbsp;</o:p>It was pleaded in the statement of defence that this matter has
been settled at an arbitration at which Anomako the head of the family agreed
to forego the civil rights of the deceased’s estate against the defendant, and
the latter in his turn agreed to refund to the deceased’s estate the funeral
expenses which were incurred. Accordingly, it was pleaded that the plaintiff
was estopped by the settlement reached at this arbitration from proceeding with
the present action. I find it established on the evidence that at the behest of
Kwasi Anomako, the district commissioner for Mampong settled a matter resulting
from the death of the deceased between the said Anomako and the defendant, in
consideration of which the defendant agreed to pay and in fact paid £G100 to
Anomako and also agreed to be responsible for the expenses incurred on the
deceased’s funeral. Such settlement has clearly nothing to do with the
dependants of the deceased who were neither consulted nor represented at the so-called
arbitration. The right of the dependants is conferred by statute and it is not
suggested that their rights can in any way be compromised by what took place
before the district commissioner. In any judgment,</main>