JUDGMENT OF MENSA BOISON J.
The two claimants are respectively the wife (as respondent) and mother (as appellant) of the late E. K. Butah. The late Butah was an employee of Oyoko Contractors Ltd. who were the defendants at the trial. It appears his death was a result of fatal injuries sustained in the course of his employment with the defendant company. Both claimants lay claim against the defendants as dependants of the late Butah.
A claim for compensation was made by the respondent on her own behalf as the wife of the deceased, and for her child of the marriage under the Workmen's Compensation Act, 1963 (Act 174). The appellant, having registered her interest, insisted on proceeding against the defendant company in negligence at common law. Neither of the two dependants would compromise on the mode of claim. In due course the district labour officer took out a motion, before the district court, under Act 174 for an order distributing the assessed amount under the Act to the dependants. The motion was supported by an affidavit sworn to by the first claimant only. At the hearing, the second claimant, by her counsel, opposed the application on the grounds that as the second claimant elects to proceed at common law the payment of the compensation under the Act at the election of the first claimant only will bar proceedings at common law.
The learned district magistrate ruled against the contention holding that the compensation was payable to the dependant who claims, and that it did not operate as a bar to proceedings at common law at the instance of the second claimant. Against this ruling the second claimant has appealed. The material ground is that:
"By section 24 (3) of Act 174 a judgment at the suit of a dependant under the Act is a bar against claims by any other dependant in any proceedings independently of the Act and that the (trial) court erred in holding the contrary."
Mr. Totoe, counsel for the second claimant founded his contention on section 24 (1) of the Act and more particularly on subsections (2) and (3). These provide (the emphasis is mine): [p.53] "24. (1) Where the injury was caused by the personal negligence or wilful act of the employer or of some other person for whose act or default the employer is responsible, nothing in this Act shall prevent proceedings to recover damages being instituted against the employer in a Civil Court independently of this Act.
(2) A judgment in such proceedings whether for or against the employer s
