GRAVES v. OYEWOO

JUDGMENT OF AZU CRABBE J.A.

This is an appeal from the judgment of Djabanor J. dated 12 May 1965, whereby he awarded £G100 damages in favour of the plaintiff, but he made no order as to costs.

The appeal is directed mainly against the learned judge's assessment of the damages claimed, for it is alleged that the award in the circumstances was grossly inadequate, having regard to the evidence adduced at the trial. The respondent did not appear at the hearing of the appeal, neither was he represented by counsel. But in view of certain unsatisfactory features of the case which are apparent in the record, we have decided, following the decision of this court in Ashitey v. Dodoo [1967] G.L.R. 125 to exercise. the powers and authority conferred by rules 31 and 32 of the Supreme Court Rules, 1962 (L.I. 218).The relevant terms of rules 31 and 32 are:

"31. The Court may . . . make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to enquire into and certify its finding on any question which the Court thinks fit to determine before final judgment in the appeal . . . and generally shall have as full jurisdiction over the whole proceedings as if the proceedings had been instituted and prosecuted in the Court as a Court of first instance, and may rehear the whole case . . .

32. The Court shall have power to give any judgment and make any order that ought to have been made, and to make such further or other order as the case may require including any order as to costs. These powers may be exercised by the Court, notwithstanding that the appellant may have asked that part only of a decision may be reversed or varied, and may also be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have appealed from or complained of the decision."

The plaintiff by his writ in this action claimed damages for £G5,992 in respect of the death of his late brother, Charles Reuben [p.805] Graves. The deceased died on 24 November 1959, whilst he was travelling as a passenger in a vehicle owned by the first defendant, but driven at the time by the second defendant. The plaintiff's claim was obviously brought under the Fatal Accidents Acts, 1846-1864 (9 & 10 Vict., c. 93 and 27 & 28 Vict., c. 95).

The title of the plaintiff's writ which was filed on 10 December 1960, does not show the capacity in which he