ASHITEY AND ANOTHER vs. DODOO [1967]DLCA1453

Date	1967-03-13
Suit No.
Citation No.	[1967]DLCA1453

OLLENNU JA

AZU CRABBE JA

LASSEY J.A.

AKYEA-DJAMSON FOR THE APPELLANTS.

OSEI FOR THE RESPONDENT.

[1967]DLCA1453
																																						<div class="restriction-wrapper">
														<div class="container-lg">
															<div class="row">
																<div class="col-md-12 restricted-content">
																	<div class="restricted-content-img-wrapper">
																		<div class="lock-icon bounce-7">
																			<img class=""
																				src="https://www.dennislawgh.com/dl-assets/dl-images/lock-content.png"
																				alt="Subscription based content">
																		</div>
																	</div>
																	 
																		<a href="https://www.dennislawgh.com/login"
																		class="btn btn-primary btn-lg"
																		style="font-family: 'open sans'; text-transform: capitalize; border-radius: 8px"> 
																		Login to Read Full Case </a>
																	 
																	
																</div>
															</div>
														</div>
													</div>
													<main id="main" class="content" style="min-height: 60rem" >ASHITEY AND ANOTHER <o:p></o:p>vs. <o:p></o:p>DODOO <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1967] GLR 125<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:
13 MARCH 1967.<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">

AKYEA-DJAMSON FOR THE APPELLANTS.<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">

OLLENNU, AZU CRABBE AND LASSEY JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AZU CRABBE J.A.<o:p></o:p>This is
an appeal against the judgment of Archer J., 12 November 1964, unreported;
digested in (1965) C.C. 6, whereby £G3,100 damages together with 200 guineas
costs, were awarded against the first and second defendants (appellants)
jointly and severally, in favour of the plaintiff (respondent).<o:p></o:p><o:p>&nbsp;</o:p>The
action was brought by the plaintiff, a female infant, aged nine years, by her
mother as next friend, claiming damages from the two defendants jointly and
severally for personal injuries sustained by her through the negligence of the
second defendant (a driver), who as agent or servant or both of the first
defendant (lorry-owner), drove a Morris vehicle one and a half ton weight,
registration No. AE 7814 on 3 November 1962, without due care and negligently
knocked down the plaintiff. The issues which were formulated for trial were:
(1) whether or not the second defendant was negligent; (2) whether or not the
defendants were liable; and (3) whether or not the plaintiff was entitled to
the reliefs sought. The first issue was a question of fact for the learned
trial judge, who, after hearing the evidence, had no difficulty in finding that
the second defendant was negligent. In my view the learned judge’s conclusion
was clearly right, for there was ample evidence to support it.<o:p></o:p><o:p>&nbsp;</o:p>The
learned trial judge then posed the question: “Who is liable?” In trying to find
an answer to this question he embarked upon a careful and thorough examination
of the evidence led on behalf of the defence, and the end-result was he found
that the first defendant was the owner of vehicle No. AE 7814 which was being
driven by the second defendant at the time of the accident. This finding he
expressed in the following passage of his judgment:<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">“I
therefore find that at the time of the accident the property in the vehicle AE
7814 was vested in the first defendant as owner and that the second defendant
drove the vehicle with the knowledge and consent of the first defendant. It is
not necessary for me to find whether the second defendant was agent or servant
of the first defendant. I therefore hold the first and second defendants
jointly and severally liable for negligently causing the injuries to the
plaintiff.”<o:p></o:p><o:p>&nbsp;</o:p>Before
arriving at this conclusion, however, the learned trial judge had to consider
who the owner of vehicle No. AE 7814 was in terms of the Road Traffic
Ordinance, 1952 (No. 55 of 1952), and the owner in whose name an insurance
policy certificate had been issued in accordance with the Motor Vehicles (Third
Party Insurance) Act, 1958 (No. 42 of 1958). Consideration of these matters
became necessary during the trial, because the first defendant denied that he
was the owner of the vehicle; he having sold it to the second defendant about
three months before the accident. The learned trial judge, however, rejected
the first defendant’s contention because, as he said:<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">“It is
obvious that by keeping the insurance policy in the name of the first defendant
and by renewing the licences in the name of the first defendant, both the first
and second defendants intended that the property in the vehicle should not pass
until the full purchase price had been paid.”<o:p></o:p><o:p>&nbsp;</o:p>It seems
to me, at first blush, that in determining the liability of the first defendant
solely on the fact of ownership in these circumstances the learned trial judge
must have had in mind the principle in Monk v. Warbey [1935] 1 K.B. 75, C.A.
which decided that the owner of a motor car who permits another person to drive
so that there is no insurance in relation to the user of the car against third
party risks is guilty of a breach of the statutory duty imposed upon him by
section 35 of the Road Traffic Act, 1930 (20 &amp; 21 Geo, 5, c. 43), of
England, whereby he becomes liable in damages to a third party who </main>