IN RE WEREKO (DECD.); WEREKO v. ARMAR AND OTHERS

JUDGMENT OF OSEI-HWERE J.

By his amended writ, the plaintiff, for and on behalf of the estate of Olivia Sarpong Wereko (deceased), has sued the defendants claiming general damages against them jointly and severally for negligence which resulted in the death of his daughter, Olivia Sarpong Wereko. Her death was occasioned by the collision of an omnibus and a taxi-cab driven by the first and third defendants, respectively. The defendants have not contested their liability in [p.851] negligence and the only issue outstanding for determination is the quantum of damages, if any, which is awardable. The plaintiff’s daughter, Olivia, was 21 years old when she died on 21 July 1976. She was educated at the Holy Trinity Secondary School where she sat for and passed the G.C.E. “O” level examination. Thereafter she entered a commercial college and sat for the R.S.A. examination in commerce, shorthand and typing. She had, before her death, gained temporary employment at the Electricity Corporation on a salary of ¢124 per month. She also had the prospect of a permanent appointment with the Agricultural Development Bank. She was on her way to Takoradi to find out the result of her “grading” test when she was involved in this fatal accident. She was survived by a ten-month old baby daughter. The plaintiff has sued the second defendants, the Omnibus Service Authority, as the masters of the first defendant and the fourth defendants, the State Insurance Corporation, as the underwriters of policies of insurance covering both vehicles at the time of the accident.

The defendants’ counsel has, in his address, challenged the capacity whereby the plaintiff has brought the action. His contention is that the plaintiff’s capacity is not disclosed either in the writ or in the statement of claim. Counsel further argued that if by the subsequent amendment of the title of the suit the plaintiff now pretends to sue in a representative capacity then it must fail as the amendment does not show that he has obtained any letters of administration and, even if he had obtained one before his amendment, as the writ was a nullity it could not be saved by the purported amendment. The defendants’ counsel found his submissions on want of capacity fully bottomed in the decision in Akrong v. Bulley [1965] G.L.R. 469, S.C. When judgment was yet to be delivered a motion was brought on behalf of the fourth defendants praying that this court sets aside the service of the writ of summons against them