ANTWI AND ANOTHER v. RAMAN AND OTHERS

JUDGMENT OF ARYEETEY J.

By their writ of summons the plaintiffs claim against the defendants jointly and severally:

"(i) General and special damages for serious damage caused to the plaintiffs' Mercedes Benz commercial bus No AM 6456 when it was negligently run into at Accra New Town by the second and third defendants' vehicle No. AK 7125 then under the management and control of the first defendant who was at all material times operating in the normal course of duty as the servant and agent of the second and third defendants.

(ii) Any other reliefs found due."

As it turned out only the second defendant, the Social Security Bank Ltd., entered appearance and filed their statement of defence. Even through the first and third defendants were served with the writ of summons through a substituted process they did not enter appearance. Therefore on 15 June 1989 the plaintiffs obtained interlocutory judgment against them in default. However, the assessment of damages was shelved until the hearing of the matter between the plaintiffs and the second defendant.

As between the plaintiffs and the second defendant the most relevant issues in my view are:

(i) whether the second and third defendants were the joint owners of Canter bus No. AK 7125;

(ii) whether the first defendant was or must be deemed to be in charge of the vehicle as the agent and servant of both the second and third defendants or either of them; and

(iii) whether the second defendant was entitled to repudiate liability despite the fact that the vehicle is registered and insured in its name as well as that of the third defendant as the joint owners thereof.

The stand of the second defendant as presented in their statement of defence is that in 1980 the bank financed the purchase of bus No. AK 7125 by the third defendant who had possession, full control and its [p.255] management for his transport business, to the exclusion of the second defendant. In line with that the first defendant was an agent of the third defendant. The reason why the vehicle was registered in the joint names of the third defendant and second defendant was merely to provide security for the loan to the third defendant. In the case of Badu v. Fynn High Court, Sekondi, unreported Aboagye J. had held that where in a hire-purchase agreement the property in a bus remained in the vendor until the payment of the whole purchase price the vendor was vicariously liable for the negligent driving of the purchaser on the basis that al