IN RE WEREKO (DECD.); WEREKO vs. ARMAR AND OTHERS [1980]DLHC1075

Date	1980-01-10
Suit No.
Citation No.	[1980]DLHC1075

OSEI-HWERE J.

NUNOO FOR THE PLAINTIFF.

R. K. APALOO FOR THE DEFENDANTS.

[1980]DLHC1075
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													<main id="main" class="content" style="min-height: 60rem" >IN RE WEREKO (DECD.); WEREKO <o:p></o:p>vs. <o:p></o:p>ARMAR AND OTHERS<o:p></o:p>[HIGH COURT, CAPE COAST] <o:p></o:p>[1978] GLR 849<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:
10 JANUARY 1980<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">

NUNOO FOR THE PLAINTIFF.<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 1.0pt 0in">

OSEI-HWERE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OSEI-HWERE J.<o:p></o:p>By his
amended writ, the plaintiff, for and on behalf of the estate of Olivia Sarpong
Wereko (deceased), has sued the defendants claiming general damages against
them jointly and severally for negligence which resulted in the death of his
daughter, Olivia Sarpong Wereko. Her death was occasioned by the collision of
an omnibus and a taxi-cab driven by the first and third defendants,
respectively. The defendants have not contested their liability in negligence
and the only issue outstanding for determination is the quantum of damages, if
any, which is awardable. The plaintiff’s daughter, Olivia, was 21 years old
when she died on 21 July 1976. She was educated at the Holy Trinity Secondary
School where she sat for and passed the G.C.E. “O” level examination.
Thereafter she entered a commercial college and sat for the R.S.A. examination
in commerce, shorthand and typing. She had, before her death, gained temporary
employment at the Electricity Corporation on a salary of ¢124 per month. She
also had the prospect of a permanent appointment with the Agricultural
Development Bank. She was on her way to Takoradi to find out the result of her
“grading” test when she was involved in this fatal accident. She was survived
by a ten-month old baby daughter. The plaintiff has sued the second defendants,
the Omnibus Service Authority, as the masters of the first defendant and the
fourth defendants, the State Insurance Corporation, as the underwriters of
policies of insurance covering both vehicles at the time of the accident.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants’ counsel has, in his address, challenged the capacity whereby the
plaintiff has brought the action. His contention is that the plaintiff’s
capacity is not disclosed either in the writ or in the statement of claim.
Counsel further argued that if by the subsequent amendment of the title of the
suit the plaintiff now pretends to sue in a representative capacity then it
must fail as the amendment does not show that he has obtained any letters of
administration and, even if he had obtained one before his amendment, as the
writ was a nullity it could not be saved by the purported amendment. The
defendants’ counsel found his submissions on want of capacity fully bottomed in
the decision in Akrong v. Bulley [1965] G.L.R. 469, S.C. When judgment was yet
to be delivered a motion was brought on behalf of the fourth defendants praying
that this court sets aside the service of the writ of summons against them
principally for misjoinder. The main reason for this late application was, of
course, the alleged discovery by the fourth defendants that the second
defendants were in breach of the licence-clause of their policy by allowing the
first defendant, aged 22 at the time of the accident, to drive the omnibus. It
was argued on behalf of the fourth defendants that as they were not liable to
the plaintiff in tort they could not be joined to the other defendants who were
the tortfeasors. It was further contended that the fourth defendants were
joined on the assumption that they were liable to indemnify the second
defendants for the tortious liability of their servant, but that as there was
no basis for such indemnity the joinder of the fourth defendants should be set
aside.<o:p></o:p><o:p>&nbsp;</o:p>In regard
to the motion to set aside the writ against the fourth defendants, I am
satisfied that the plaintiff’s affidavit in opposition to the motion and the
argument advanced by his counsel in support of his affidavit afford sufficient
answer to the application. In paragraph (1) of the joint defence filed on their
behalf the defendants admitted that subject to proof of the alleged injury,
loss and damage, the plaintiff was entitled to damages against them and that
they would not contest the issue of liability. Whereupon the plaintiff
subsequently moved for and obtained an interlocutory judgment against them. By that
judgment the issue of liability became concluded and closed. I accordingly
agree with the plaintiff’s counsel that even if the fourth defendants have good
grounds to set aside the writ, they should have first moved to set aside the
interlocutory judgment. But their tardy discovery that the second defendants
were in breach of the policy of insurance can hardly be any good ground to
disturb the interlocutory judgment, if there was such an application before the
court. Before the court will accept fresh evidence which has come to light
subsequently as a ground to set aside a judgment the court must be satisfied
that the alleged fresh evidence is material and that it could not with
reasonable diligence have been discovered before the judgment: see Falcke v.
Scottish Imperial Insurance Co. (1886) 56 L.T. 220, C.A. The recent Court of
Appeal decision in Bonsu v. State Insurance Corporation [1977] 1 G.L.R. 303,
C.A. should also stifle the last breath, in prayer, of the applicants. That
case came before the Court of Appeal from a circuit court where the court below
had dismissed the plaintiff’s action against the State Insurance Corporation
(who had been joined as co-defendants) on the grounds that their liability only
arose after the plaintiff had successfully obtained judgment against the
insured tortfeasor and not before and that the joinder was, accordingly, wrong.
The Court of Appeal had no inhibitions in allowing the plaintiff’s appeal on
several grounds, of which the outstanding grounds were:<o:p></o:p>