EL-ROUH v. HAMILI

JUDGMENT OF OLLENNU J.S.C.

The appellant, hereinafter called the plaintiff, sued the respondent, hereinafter called the defendant, in the High Court, Kumasi, to recover damages for injuries he allegedly sustained in a motor accident. The accident involved a Volkswagen car No. AN 3166 in which he was travelling, owned and driven at the material time by one Ahmed Wasfi Al-Ghanname, now deceased. The said Ahmed Wasfi Al-Ghanname, hereinafter called the deceased, died in the said accident. The plaintiff's case is that the accident was caused by the negligence of the deceased in the driving of his said car. The defendant is sued in his representative capacity, i.e. as attorney of one Nuri Al-Ghanname, administrator of the estate of the deceased.

In addition to denying all allegations of fact made by the plaintiff in his statement of claim, the defendant raised a point of law by his pleading, namely, that the plaintiff has no cause of action against the estate of the deceased alleged tortfeasor, by reason of the common law principle of actio personalis moritur cum persona. The court tried this preliminary point of law as provided in Order 25, r. 2, of the Supreme [High] Court (Civil Procedure) Rules, 1954, and resolved the same in favour of the defendant; holding that its said decision disposed of the whole action, the court made and order, in exercise of the powers given it in Order 25, r. 3, of the said Civil Procedure Rules, dismissing the plaintiff's claim.

The plaintiff has appealed against the said ruling to this court on one original ground of appeal namely,

"The learned judge's interpretation of section 15 (2) of the Motor Vehicles (Third Party Insurance) Act, 1958, is so foreign to the intention of the said Act that it cannot be correct."

By leave of the court counsel for the plaintiff, in addition to the original, argued the following new grounds, namely,

"I. The learned trial judge misdirected himself when he said that 'the actio personalis rule is too firmly established to be overthrown by a sidewind.'

[p.310]

2. The learned trial judge misdirected himself in holding that the plaintiff had no cause of action against the estate of Ahmed Wasfi Al-Ghanname (deceased)."

Arguing the two additional grounds of appeal, learned counsel for the plaintiff referred the court first to section 83 of the Courts Ordinance, 1951,1 repealed, which said:

"Subject to the terms of this or any other Ordinance, the common law, the doctrines of equity, and th