FYNHOUT PRODUCTION LTD. vs. KWAYIE & ANOR. [1971]DLCA2113

Date	1971-03-29
Suit No.
Citation No.	[1971]DLCA2113

APALOO JA

ANIN JA

ARCHER .J.A.

H. V. A. FRANKLIN FOR THE APPELLANTS.

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS.

[1971]DLCA2113
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													<main id="main" class="content" style="min-height: 60rem" >FYNHOUT PRODUCTION LTD.<o:p></o:p>&nbsp;vs. <o:p></o:p>KWAYIE &amp; ANOR. <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 475<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:
29 MARCH 1971<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">

H. V. A.
FRANKLIN FOR THE APPELLANTS.<o:p></o:p>

NO
APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS.<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, ANIN AND ARCHER J.J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ANIN J.A<o:p></o:p>The
appellants (who were the third defendants at the trial) were the owners of a
timber log production unit at Awaso. They let their entire production unit and
business to the second defendant (who did not appeal) with an option to
purchase under a hire-purchase agreement executed on 16 May 1961 (exhibit 1).
Among the assets of the business let on hire to the second defendant was a
lorry, No. AS 5117. On 7 January 1962 - during the currency of the said
hire-purchase agreement-the said lorry was being driven by the first defendant
(who did not appeal) when it collided with a passenger lorry on the highway.
The respondent (an infant who was the first plaintiff at the trial), who was a
passenger in the passenger lorry, sustained serious injuries, and through his
father and next friend (the second plaintiff) he instituted this action against
the defendants jointly and severally in the Sekondi High Court for damages “for
injuries caused to him by the negligent driving of the first defendant, servant
or agent of the second and or third defendant and in the course of his
employment and/or agency while the first defendant was in charge of timber
truck No. AS 5117 owned by the second and/or third defendant.”<o:p></o:p><o:p>&nbsp;</o:p>The first
defendant pleaded guilty at the criminal court to the offences of careless
driving and negligently causing harm and was duly convicted and sentenced to
fines totalling £G65. He did not contest this action, though served with
process, and judgment was accordingly entered against him. In the result, the
negligence of the driver was not disputed by the remaining defendants. The main
dispute was the issue of vicarious liability, if any, of either the second or
the third defendant, or both of them.<o:p></o:p>The
learned trial judge held the appellants vicariously liable for the negligence
of the first defendant and awarded damages against them. He summed up his ratio
decidendi thus:<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">“To sum
up, I would say that having once admitted ownership of the lorry, the company
on whom the burden lay to prove that the driver was not its servant failed to
so satisfy me - on account of insufficient evidence. All the company said was:
We did not employ Ayaya. His name is not in our books - but the lorry he was
driving is ours. He was carting our timber with it for us! Morrison said that:
‘Ayaya was already working for the company when he took over the running of the
business for the company.’ But even if it was he who employed Ayaya - he did so
as agent of and on behalf of the company. Ayaya was paid with their money and
they were to have insured the lorry, so it would be in their interest that
whoever drove it did so properly. For all this I find that the company is
vicariously liable to the plaintiff for the injury caused to the first
plaintiff by the negligence of their servant Ayaya.”<o:p></o:p><o:p>&nbsp;</o:p>Form this
judgment, the appellants have appealed to this court. On their behalf, learned
counsel has canvassed with meticulous care and scrupulous fairness, two grounds
of appeal, namely: (1) That the learned trial judge was wrong in deciding that
vicarious liability for the negligence of the first defendant, Ayaya, attached
to the appellants; and (2) that the amount of general damages awarded was
excessive.<o:p></o:p>In
support of his first ground of appeal, learned counsel for the company
submitted that the learned trial judge erred in law and on the facts by his
misapplication of such well-known authorities as Barnard v. Sully (1931) 47
T.L.R. 557 and Aboaku v. Tetteh [962] 2 G.L.R. 165, S.C.; and by holding that
since the appellants were the owners of lorry No. AS 5117, the mere fact of the
appellants’ ownership of the lorry is prima facie evidence that the lorry was
at the material time been driven by either their servant or agent and
concluding that the appellants are vicariously liable for the driver’s
negligence. The true ratio of the decision in Ba</main>