OBENG vs. BOATENG AND OTHERS [1966]DLHC1736

Date	1966-10-18
Suit No.
Citation No.	[1966]DLHC1736

AMISSAH J.A.

OSEI BONSU FOR THE PLAINTIFF.

E. L. COLE FOR THE SECOND DEFENDANTS.

H. P. SWANIKER FOR THE THIRD PARTIES.

[1966]DLHC1736
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													<main id="main" class="content" style="min-height: 60rem" >OBENG <o:p></o:p>vs. <o:p></o:p>BOATENG AND OTHERS <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1966] GLR 689<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
28 OCTOBER
1966.<o:p></o:p>

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

OSEI BONSU FOR THE PLAINTIFF.<o:p></o:p>

E. L. COLE FOR THE SECOND DEFENDANTS.<o:p></o:p>

H. P. SWANIKER FOR THE THIRD PARTIES.<o:p></o:p>

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

AMISSAH J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMISSAH J.A.<o:p></o:p>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 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.<o:p></o:p><o:p>&nbsp;</o:p>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:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(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. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(b) If
so, what is the quantum of damages?”<o:p></o:p><o:p>&nbsp;</o:p>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 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:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“(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. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(b) Whether
the second defendants are not vicariously liable to the plaintiff in damages
for the negligence of the first defendant. <o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">