GRAVES vs. OYEWOO [1967]DLCA1500

Date	1967-07-03
Suit No.
Citation No.	[1967]DLCA1500

OLLENNU JA

AZU CRABBE JA

APALOO J.A.

L K. ABBAN FOR THE APPELLANT.

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT.

[1967]DLCA1500
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													<main id="main" class="content" style="min-height: 60rem" >GRAVES<o:p></o:p>&nbsp;vs. <o:p></o:p>OYEWOO <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1967] GLR 803<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:
3 JULY 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">

L K. ABBAN FOR THE APPELLANT.<o:p></o:p>

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT.<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 APALOO 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 from the judgment of Djabanor J. dated 12 May 1965, whereby he
awarded £G100 damages in favour of the plaintiff, but he made no order as to
costs.<o:p></o:p><o:p>&nbsp;</o:p>The
appeal is directed mainly against the learned judge’s assessment of the damages
claimed, for it is alleged that the award in the circumstances was grossly
inadequate, having regard to the evidence adduced at the trial. The respondent
did not appear at the hearing of the appeal, neither was he represented by
counsel. But in view of certain unsatisfactory features of the case which are
apparent in the record, we have decided, following the decision of this court
in Ashitey v. Dodoo [1967] G.L.R. 125 to exercise. the powers and authority
conferred by rules 31 and 32 of the Supreme Court Rules, 1962 (L.I. 218).The
relevant terms of rules 31 and 32 are:<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">“31. The
Court may . . . make any order necessary for determining the real question in
controversy in the appeal, and may amend any defect or error in the record of
appeal, and may direct the Court below to enquire into and certify its finding
on any question which the Court thinks fit to determine before final judgment
in the appeal . . . and generally shall have as full jurisdiction over the
whole proceedings as if the proceedings had been instituted and prosecuted in
the Court as a Court of first instance, and may rehear the whole case . . . 32.
The Court shall have power to give any judgment and make any order that ought
to have been made, and to make such further or other order as the case may
require including any order as to costs. These powers may be exercised by the
Court, notwithstanding that the appellant may have asked that part only of a
decision may be reversed or varied, and may also be exercised in favour of all
or any of the respondents or parties, although such respondents or parties may
not have appealed from or complained of the decision.”<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff by his writ in this action claimed damages for £G5,992 in respect of
the death of his late brother, Charles Reuben Graves. The deceased died on 24 November
1959, whilst he was travelling as a passenger in a vehicle owned by the first
defendant, but driven at the time by the second defendant. The plaintiff’s
claim was obviously brought under the Fatal Accidents Acts, 1846-1864 (9 &amp;
10 Vict., c. 93 and 27 &amp; 28 Vict., c. 95).<o:p></o:p>The title
of the plaintiff’s writ which was filed on 10 December 1960, does not show the
capacity in which he was suing, but the endorsement, so far as is material, is
in the following terms:<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">“The
plaintiff as customary successor and administrator of Mr. Charles Reuben Graves
(deceased) brings this action against the defendants for the benefit of the
children, and the dependants of the said Charles Reuben Graves (deceased)...”<o:p></o:p><o:p>&nbsp;</o:p>The writ
was on 23 November 1960 served on the first defendant who, without waiting for
the statement of claim, filed a defence on 9 December 1960. Nothing, however,
really turns on this statement of defence at this stage. On 19 December 1960,
the plaintiff filed a statement of claim in which he made the following
material averments: (1) that he was a government pensioner, (2) that he was
suing “as the customary successor and administrator of the deceased Charles
Reuben Graves,” (3) that the death of the deceased was due to the negligent
driving of the second defendant in the course of his employment and (4) that
the claim was against the first and second defendants jointly and severally for
damages for £G5,992 “for the persons who have suffered special damage from the
said negligence of the second defendant.” Full particulars of the claim, and
the persons on whose behalf the action was brought by the plaintiff, were
annexed to the statement of claim. The persons named in the particulars were
only the wives and children of the deceased, and it is significant that the
plaintiff claimed nothing for himself. The first defendant thereupon filed an
additional statement of defence, and taking the two statements together, it is
clear: (1) that the first defendant was admitting ownership of the vehicle
which ran off the road on 24 November 1959, resulting </main>