JUDGMENT OF APALOO J.A.
On 9 March 1965 a collision occurred between a lorry and a VW van at a place called Apremdu Road on the Takoradi-Apowa motor road. The lorry was then being driven by the first defendant while [p.82] Mr. M. K. Bosumtwe was in charge of the VW van. The latter met his death as a result of the accident.
On 5 December 1966 the plaintiff obtained letters of administration to administer the estate of the said Bosumtwe and on 30 December 1966 he brought an action against the defendants claiming damages on behalf of certain named dependants of the deceased. It was claimed by the plaintiff that the accident occurred as a result of the negligent driving of the first defendant. The second defendant was sued jointly with the first defendant because it was stated in the writ that: "At the material time, the first defendant was the servant and employee of the second defendant, the second defendant being the owner of the vehicle in question." As attempts to serve the first defendant with the writ were unsuccessful, the High Court, Sekondi, on the application of the plaintiff, granted an order for substituted service. After the lapse of the period limited for this purpose and as the first defendant failed to enter an appearance or lodge a defence, the court, again at the behest of the plaintiff, granted leave for an interlocutory judgment to be entered against the first defendant, subject to the assessment of damages. On 11 November 1967 these damages were assessed at N¢5,000 and were apportioned among the three named dependants of the deceased.
The second defendant, however, entered an appearance and filed a defence in which he denied that at the date of the accident the first defendant was his servant or agent or was driving the motor vehicle in the course of his employment. In paragraph (3) he averred:
"The second defendant denies paragraph (3) of the statement of claim and avers that before the date of the said accident, the said motor vehicle had been sold to the first defendant herein and as such cannot be said to be driving it with the consent of the second defendant but that he drove the said motor vehicle in his own right as the owner thereof."
Thus, the only issue joined between the plaintiff and the second defendant was whether the latter was vicariously liable for the negligence of the first defendant. At the trial, the second defendant gave oral evidence of the sale and produced in evidence a written document in support. The auth
