SHELL COMPANY OF GHANA LTD. vs. SARPONG [1973]DLCA2206

Date	1973-12-11
Suit No.
Citation No.	[1973]DLCA2206

APALOO JA

AMISSAH JA

SOWAH J.A.

B. KWAW SWANZY (JOE REINDORF AND MISS SOLOMON WITH HIM) FOR THE APPELLANT.

U.V. CAMPBELL FOR THE RESPONDENT.

[1973]DLCA2206
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													<main id="main" class="content" style="min-height: 60rem" >SHELL COMPANY OF GHANA LTD. <o:p></o:p>vs. <o:p></o:p>SARPONG <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;[1973]
1 GLR 249<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
11 DECEMBER 1972.<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">

B. KWAW SWANZY (JOE REINDORF AND MISS SOLOMON WITH
HIM) FOR THE APPELLANT.<o:p></o:p>

U.V. CAMPBELL 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, AMISSAH AND SOWAH JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.A.<o:p></o:p>Apaloo
J.A. delivered the judgment of himself and Amissah J.A. The respondent is a
young woman who in 1966 was employed as a pump attendant at an Agip petrol
filling station in Kumasi. She was then aged 22 and was in receipt of income at
the rate of N¢13 per month. At about 12 noon on 27 October 1966 she was sitting
under a tree close to the kerb at the station when a Bedford tanker No. AT 6897
driven by one James Marfo collided with her. Her right leg was almost
completely crushed under the lorry and she received a number of injuries to
other parts of her body. She lost consciousness as a result of her injuries.
She regained it at the hospital a fortnight afterwards.<o:p></o:p><o:p>&nbsp;</o:p>The
action which culminated in this appeal was accordingly brought to recover
damages for her injuries and such income as she lost by reason of the accident.
In addition to James Marfo the actual tortfeasor, two other persons were sued,
namely, a P. K. Nsiah and Shell Company of Ghana Ltd. The former was the master
of the driver Marfo and the latter was the legal owner of the tanker. These two
were joined to the action, apparently because the respondent conceived that
they were both vicariously liable for the tort of the said Marfo. The action
was at first instituted in the circuit court where the respondent obtained
interlocutory judgment against Marfo and his master Nsiah for their default in
entering appearance. Shell Company of Ghana Ltd. resisted the action in the
circuit court and in the High Court to which the suit was later transferred. We
shall refer to it subsequently in this judgment as the appellant. It filed a
statement of defence in which it denied vicarious liability for the tort of
James Marfo. It averred that the tanker which Marfo drove in committing the
tort was on 23 August 1966 sold on hire-purchase terms to the said Nsiah. It
averred further that the tanker was thereafter delivered to Nsiah who had
complete control of it and that not only was the driver Marfo not its servant
but his existence was completely unknown to it. The appellant made good these
averments at the trial and the learned judge rejected the respondent’s claim
that the appellant was liable to her on the basis of vicarious responsibility.<o:p></o:p><o:p>&nbsp;</o:p>It became
obvious to the respondent’s solicitor on receipt by him of the appellant’s
statement of defence, that the claim against the appellant on the principle of
respondeat superior might run into difficulties. Accordingly, he sought and
obtained leave to amend the writ and the statement of claim to prosecute the
claim against the appellant on the alternative limb that, “the defendants
caused or permitted another person to drive the said vehicle in Kumasi without
a valid insurance policy covering third party risks.” It was therefore urged
that the appellant was in breach of section 3 of the Motor Vehicles (Third
Party Insurance) Act, 1958 (No. 42 of 1958), and as that breach resulted in
damages to the respondent, the appellant was liable in damages to the former
under the well-known principle in Monk v. Warbey [1935] 1 K.B. 75, C.A. The
appellant denied it caused or permitted either Marfo or Nsiah to drive the said
vehicle in contravention of the said Act or “any law in force relating to such
user or driver.” In the result, whether or not the appellant was in breach of
statutory duty became the only serious issue on which the judge’s decision was
invited. There were some other minor supplementary questions on which issues
were joined, namely, first whether or not the driver was solely to blame for
the accident or whether the respondent was guilty of contributory negligence
and secondly whether the said Marfo and Nsiah were without means of satisfying
the judgment in order to attract the application of Monk v. Warbey (supra).<o:p></o:p><o:p>&nbsp;</o:p>These two
latter questions did not appear to have presented any problem to the judge
(Mensa Boison J.). He disposed of them clearly against the appellant. The main
issue whether or not the appellant was in breach of statutory duty however gave
the judge some trouble and after relating the facts and citing and examining a
number of decided cases, he concluded that, “there can be no clearer case of
permitting as defined in Houston v. Buchanan [1940] 2 All E.R. 179, H.L. than
the act of the third defendants [meaning the appellant] in this case.” Having
held also that </main>