AKUFO vs. ISSAKA AND ANOTHER [1962]DLHC1335

Date	1962-10-01
Suit No.
Citation No.	[1962]DLHC1335

APALOO J.

I. R. ABOAGYE FOR THE PLAINTIFF.

G. DAVEY FOR THE DEFENDANTS.

[1962]DLHC1335
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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">AKUFO<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">&nbsp;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">ISSAKA AND ANOTHER<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 88<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"> 1ST OCTOBER, 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">

I.
R. ABOAGYE 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>In this action the plaintiff claims damages against the defendants
for injuries sustained by him in a motor accident which occurred at Kumasi on
the 1st September, 1960. The plaintiff claims that the accident occurred as a
result of the negligent driving of the second defendant who was the servant and
agent of the first defendant. In view of the events which I will relate, the
only matter left for determination is the quantum of damages to which the
plaintiff is entitled.<o:p></o:p><o:p>&nbsp;</o:p>The writ in this case issued on the 17th February, 1962. To it was
attached a statement of claim. The record shows that these were served on the
first defendant on the 19th February, 1962. He entered no appearance and filed
no statement of defence. Accordingly, on the application of the plaintiff, I
entered interlocutory judgment in his favour against the first defendant on the
30th April, subject to the assessment of damages on the 8th May. The second
defendant has not been served with the writ, attempts to serve him having
failed. Accordingly, the judgment which I will deliver in this case will affect
the first defendant alone.<o:p></o:p><o:p>&nbsp;</o:p>On the 4th May, 1962, Messrs. J. J. Peele entered appearance on
behalf of the first defendant and on the 8th May moved to have the
interlocutory judgment set aside on the ground that the plaintiff elected to
and in fact received compensation under the Workmen’s Compensation
Ordinance1(1) and was therefore precluded by the provisions of section 24 (1)
of that Ordinance from proceeding with the present claim. The plaintiff
resisted this application and while admitting the payment to himself of the sum
of £G695 by the labour officer denied that he had applied for compensation
under the said Ordinance, or that he had elected to forego his right to damages
at common law. In order to rule on this preliminary question, I took evidence
on the 15th May, 1962. On the 24th May, 1962, I delivered a ruling in which I
held that the defendant’s preliminary point failed and that the plaintiff was
entitled to pursue his claim for damages at common law. I put the plaintiff to his
election to claim compensation under the Workmen’s Compensation Ordinance or to
pursue his claim for damages at common law. In the event of the plaintiff
electing the latter, I ordered that he should refund the sum of £G695 which was
paid to him ostensibly under the Workmen’s Compensation Ordinance. That sum has
since been lodged into court.<o:p></o:p><o:p>&nbsp;</o:p>In my said ruling of the 24th May, I, in the exercise of my
discretion, gave leave to the defendants to file a defence if they were
desirous of defending the suit on its merits notwithstanding the fact that
their application for setting aside the interlocutory judgment had failed. My
object was to discharge the interlocutory judgment if this was done and permit
the action to be fought on its merits in view of the somewhat grave
consequences that judgment may entail for the defendants. Presumably acting on
the said order, a statement of defence was lodged on behalf of the first
defendant on the 14th July, 1962. In that statement, the first defendant denied
the allegation of negligence and in the alternative pleaded that the plaintiff
was guilty of contributory negligence. When hearing eventually opened before me
on the 25th September last, counsel for the first defendant told me he had
instructions not to proceed with the defence filed. Accordingly, the
interlocutory judgment stood and as I said, the only matter left for
determination is the damages to which the plaintiff is entitled for his
injuries.<o:p></o:p><o:p>&nbsp;</o:p>No medical evidence was called on behalf of the plaintiff. I
regard this as unfortunate. The only injury which the plaintiff suffered and
which has been proved to my satisfac</main>