FYNN vs. BADU [1970]DLCA2115

Date	1970-12-07
Suit No.
Citation No.	[1970]DLCA2115

APALOO JA

SOWAH JA

ARCHER J.A.

E. D. KOM (WITH HIM DJAMSON) FOR THE APPELLANT.

NO APPEARANCE BY OR FOR THE RESPONDENT.

[1970]DLCA2115
																																						<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" >FYNN <o:p></o:p>vs. <o:p></o:p>BADU <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1971] 1 GLR 80<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:
7 DECEMBER 1970.<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">

E. D. KOM
(WITH HIM DJAMSON) FOR THE APPELLANT.<o:p></o:p>

NO
APPEARANCE BY OR FOR 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">

APALOO, SOWAH AND ARCHER JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.A.<o:p></o:p>On 9
March 1965 a collision occurred between a lorry and a VW van at a place called
Apremdu Road on the Takoradi-Apowa motor road. The lorry was then being driven
by the first defendant while Mr. M. K. Bosumtwe was in charge of the VW van.
The latter met his death as a result of the accident.<o:p></o:p><o:p>&nbsp;</o:p>On 5
December 1966 the plaintiff obtained letters of administration to administer
the estate of the said Bosumtwe and on 30 December 1966 he brought an action
against the defendants claiming damages on behalf of certain named dependants
of the deceased. It was claimed by the plaintiff that the accident occurred as
a result of the negligent driving of the first defendant. The second defendant
was sued jointly with the first defendant because it was stated in the writ
that: “At the material time, the first defendant was the servant and employee
of the second defendant, the second defendant being the owner of the vehicle in
question.” As attempts to serve the first defendant with the writ were
unsuccessful, the High Court, Sekondi, on the application of the plaintiff,
granted an order for substituted service. After the lapse of the period limited
for this purpose and as the first defendant failed to enter an appearance or
lodge a defence, the court, again at the behest of the plaintiff, granted leave
for an interlocutory judgment to be entered against the first defendant,
subject to the assessment of damages. On 11 November 1967 these damages were
assessed at N¢5,000 and were apportioned among the three named dependants of
the deceased.<o:p></o:p><o:p>&nbsp;</o:p>The
second defendant, however, entered an appearance and filed a defence in which
he denied that at the date of the accident the first defendant was his servant
or agent or was driving the motor vehicle in the course of his employment. In
paragraph (3) he averred:<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
second defendant denies paragraph (3) of the statement of claim and avers that
before the date of the said accident, the said motor vehicle had been sold to
the first defendant herein and as such cannot be said to be driving it with the
consent of the second defendant but that he drove the said motor vehicle in his
own right as the owner thereof.”<o:p></o:p><o:p>&nbsp;</o:p>Thus, the
only issue joined between the plaintiff and the second defendant was whether
the latter was vicariously liable for the negligence of the first defendant. At
the trial, the second defendant gave oral evidence of the sale and produced in
evidence a written document in support. The authenticity of that document was
vouched for by the person who actually prepared it. The agreement, exhibit 1,
was headed “Hire-Purchase Agreement.” It contains the total purchase price and
the way in which payments are to be made. It stipulates that property in the
bus shall remain in the second defendant until the full payment of the purchase
price. It put the obligation for the making of repairs on the first defendant
and paragraph (6) which weighed very much with the judge reads: “That in the
event of any accident taking place, the second party shall be responsible to
all costs of repairs, damages or claims resulting from the said accident.”<o:p></o:p><o:p>&nbsp;</o:p>After
reviewing the evidence, the learned trial judge, Aboagye J., held that the
first defendant was not the servant of the second defendant.<o:p></o:p>