GUARDIAN ROYAL EXCHANGE ASSURANCE (GHANA) LTD. vs. APPIAH [1984]DLCA918

Date	1984-05-21
Suit No.
Citation No.	[1984]DLCA918

FRANCOIS JA

MENSA BOISON JA

ABBAN J.A.

ADUAMA OSEI FOR THE APPELLANTS.

NII OSAH MILLS FOR THE RESPONDENT

[1984]DLCA918
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GUARDIAN ROYAL EXCHANGE
ASSURANCE (GHANA) LTD. <o:p></o:p>

{COURT OF APPEAL, ACCRA} <o:p></o:p>

[1984-86] 1 GLR 52<o:p></o:p>

DATE:
21 MAY 1984<o:p></o:p>

</div><o:p>&nbsp;</o:p>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">

ADUAMA OSEI FOR THE APPELLANTS. <o:p></o:p>

NII OSAH MILLS 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;
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FRANCOIS, MENSA BOISON AND ABBAN JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF MENSA BOISON J.A.<o:p></o:p>This
appeal is within a narrow compass on the one issue as to whether or not the
servant of the defendants-appellants (hereinafter referred to as the
appellants) was on the occasion of a traffic accident acting in the course of
his employment as a driver. It would be necessary to state just enough facts of
the case to give understanding to the arguments of counsel.<o:p></o:p><o:p>&nbsp;</o:p>On 23
November 1974 the plaintiff-respondent (hereinafter referred to as the
respondent) as a passenger, from Accra to Nsawam, on a Bedford commercial bus
sustained serious bodily injuries when the said bus collided with a Fiat saloon
car of the appellants’ at the outskirts of Nsawam. The appellants’ car was at
the time travelling in the opposite direction and was being driven by one Ofori
Armah, a driver employee of the appellant company; but who unfortunately was
killed in the collision.<o:p></o:p><o:p>&nbsp;</o:p>In due
course, the respondent instituted this action at the Circuit Court, Accra
against the appellant company for damages for personal injuries. The trial came
on before Mrs. Striggner-Scott (then a circuit judge) who on 31 October 1980
found for the respondent. She held that the late Ofori was negligent in his
management and control of the appellants’ car on the occasion and that he was
wholly to blame for the collision. Further, contrary to the gravamen of the
defence, the learned circuit judge held that Ofori was on the occasion driving
in the course of his employment as a servant of the appellant company, and in
consequence found the appellants liable in damages to the respondent.<o:p></o:p>Before us
the finding of negligence has hardly been contested. But the one serious ground
taken and argued with some earnestness was thus directed at liability. It
averred that the learned circuit judge erred in holding that Ofori was on the
occasion of the accident acting in the course of his employment. In substance
the submission of learned counsel for the appellants was that Ofori, on the day
in question, had only limited instructions, namely to collect the Fiat car from
its garage, have it washed and return it to the garage in readiness for use on
Sunday, 24 November 1974. He never had any business of the company at Nsawam or
thereabout, and that he must necessarily have been at Nsawam for purposes of
his own, unconnected with the interests of the appellant, and in the course of
which the collision occurred. Consequently, learned counsel argued that the
case of Aitchison v. Page Motors Ltd. (1935) 52 T.L.R. 137, relied on by the
trial judge was inapplicable, and that the appellants ought not to be held
responsible.<o:p></o:p><o:p>&nbsp;</o:p>The
foundation for the contention of the appellants purports to be the evidence of
the defence at the trial. The Fiat car, to which Ofori was assigned as a
company driver, was officially allocated to the company’s chief accountant, Mr.
Acheampong. The car as a rule was garaged at the home of this officer. At the
time of these events, Mr. Acheampong, who had gone abroad for a course, was
expected back in Accra on 24 November 1974. In his absence the car was under
the charge of Mrs. Acheampong, with instructions not to give the keys to Ofori,
except on request from the office.<o:p></o:p><o:p>&nbsp;</o:p>The
evidence of Mr. Cathline, the appellants’ representative, was that on 20
November Mrs. Acheampong was notified of the husband’s expected arrival, as per
exhibit 1, as follows:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
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