AGBEDOR AND ANOTHER vs. YEBOA [1981]DLCA198

Date	1981-07-28
Suit No.
Citation No.	[1981]DLCA198

ARCHER J.A.

CHARLES CRABBE J.A.

MENSA BOISON J.

KWAME TETTEH FOR THE APPELLANTS.

NO APPEARANCE FOR OR ON BEHALF OF THE RESPONDENT.

[1981]DLCA198
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													<main id="main" class="content" style="min-height: 60rem" >AGBEDOR AND ANOTHER <o:p></o:p>vs. <o:p></o:p>YEBOA<o:p></o:p>[COURT OF APPEAL, ACCRA] <o:p></o:p>[1980] GLR 769<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:
28
JULY 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">

KWAME TETTEH FOR THE APPELLANTS.<o:p></o:p>

NO APPEARANCE FOR 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">

ARCHER AND CHARLES CRABBE JJ.A. AND
MENSA BOISON J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF CHARLES CRABBE J.A.<o:p></o:p>The
plaintiffs-appellants (hereafter referred to as the appellants) claimed general
damages against the defendant-respondent (hereafter referred to as the
respondent) for the negligence of one Gariba Abudulai, a driver of a vehicle allegedly
belonging to the respondent. The basis of the claim was that, on or about 8
December 1974, one Simon Moses Modzaka was a passenger on that vehicle. On
reaching a place called Kyekyewere Village, the vehicle skidded off its lane
into an off-side lane. Simon Modzaka, a lad of twenty years met with his death
on the spot. The claim was thus for loss of expectation of life and loss of
prospective dependency.<o:p></o:p><o:p>&nbsp;</o:p>The
learned trial judge gave judgment for the appellants as the administrators of
the estate of Simon Moses Modzaka for a total sum of ¢2,200. This was made up
of ¢600 for mental distress and ¢1,500 for loss of expectation of life. Costs
of ¢100 were also awarded. The substance of the appeal before this court is
that the learned trial judge erred in dismissing the claim for prospective
dependency. The learned trial judge in her judgment stated:<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">“In this
case, it is the life of a twenty-year old youngman who had the whole of his
life ahead of him; he was on the threshold of making his life. He had not
reached the age to have settled prospects. It is not known whether he would
have married or what he intended to do with his life. As he had just obtained .
. . qualifications . . . one may safely say that he might have become a
technician and would. have enjoyed a reasonable life. But it is not by any
means a case where the maximum award should be given, because his future had
not become definite and it cannot be said with certainty that a twenty-year old
boy who had just obtained these two certificates had good prospects of a happy
and contented life. A moderate figure should therefore be awarded. I think
¢1,500 is a moderate figure to award for loss of expectation of life.”<o:p></o:p><o:p>&nbsp;</o:p>With this
assessment, I agree. But to an extent. Indeed, counsel for the appellants did
not wish to belabour any arguments as to the adequacy of that award. I would
thus not press the point. His quarrel, however, was with the dismissal by the
learned trial judge of the claim for prospective dependency.<o:p></o:p>Nor were
any arguments raised as to the statutory validity of the award of ¢600 for
mental distress. The respondent was not present in court. He was not
represented by counsel either. The provisions of section 18 (4) of the Civil
Liability Act, 1963 (Act 176), limit awards in respect of mental distress to
deaths occurring within three years after the coming into force of the Act.
Simon died as a result of the accident on 8 December 1974, that is to say, some
eight years afterwards. The award of ¢600 is thus wrong in law.<o:p></o:p><o:p>&nbsp;</o:p>On the
evidence, the learned trial judge found that Simon was survived by his father,
an uncle, two infant sisters and two infant brothers. They all claimed as
dependants. They all fell within the definition of “member of family“ under Act
176. The learned trial judge, however, contended that by virtue of sections 15
and 18 of Act 176 damages could “only be recovered on behalf of or for the
benefit of those who had actually suffered loss.” The rationale, I presume,
being that “there must be evidence by which the court [could] determine the
loss sustained by each dependent as a result of the death.” The evidence “must
be evidence of [the] pecuniary benefit [which] would have accrued to each
dependant during the period of dependency had the deceased not been killed
untimely in the accident.”<o:p></o:p><o:p>&nbsp;</o:p>There was
no evidence that Simon had earned a living. There was no ev</main>