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December 23, 1968
HIGH COURT
GHANA
CORAM
JUDGMENT OF ABOAGYE J.
This action arose out of the negligent driving of an Austin omnibus No. WR 3646 by the first defendant on the Apowa—Takoradi motor road on or about 9 March 1965. The plaintiff's brother, Mark Kweku Bosumtwe, was killed as a result of the first defendant's said negligent driving and a writ was issued on behalf of the widow and two sons of the deceased against the first defendant as the servant of the second defendant and the latter as the owner of the omnibus and master of the first defendant for N¢10,000.00 damages for the death of the said Mark Kweku Bosumtwe upon whom they depended for their livelihood.
The first defendant did not enter an appearance in the suit and on 17 July 1967, with the leave of this court, the plaintiff entered interlocutory judgment against him. On 10 November 1967, final judgment was given against the first defendant by my brother, Koranteng-Addow J., for N¢5,000.00 with N¢150.00 costs.
The second defendant on the other hand entered an appearance and filed a defence through his solicitor, Mr. E. D. Kom. In his statement of defence the second defendant denied that he was the owner of the Austin omnibus No. WR 3646 at the time of the accident and, therefore, that he was the master or the principal of the first defendant who could be held vicariously liable for his negligent driving.
As final judgment had been given against the first defendant at the time the case against the second defendant was heard, the only issues which were tried were: (1) whether or not the second defendant was the owner of Austin omnibus No. WR 3646 at the time of the accident and (2) whether or not the first defendant was the servant or agent of the second defendant acting in the course of his employment at the material time.
To prove the two issues against the second defendant, the plaintiff gave short evidence that the Austin omnibus No. WR 3646, which was involved in the accident on 9 March 1965, belonged to the second defendant and that it was driven at the time of the accident by his driver the first defendant. The second defendant gave evidence to the effect that he bought the vehicle in question from one Nigerian called Obemena about four or five years ago and engaged the first defendant, to drive it. He did not find the running of the vehicle profitable so he decided to sell it. The first defendant then offered to buy it and he sold it to him on hire-purchase terms at N¢600.00. The sale transaction was evidenced in writin
AI Generated Summary
ABOAGYE J adjudicated liability stemming from a fatal crash on the Apowa–Takoradi road involving an Austin omnibus No. WR 3646 driven by Anthony Cobbina. The deceased, Mark Kweku Bosumtwe, supported his widow and two sons, who sued Cobbina and the vehicle’s owner for damages. Cobbina defaulted, and Koranteng‑Addow J entered final judgment for N¢5,000 plus N¢150 costs against him. The second defendant denied ownership and vicarious liability, pointing to a hire‑purchase agreement and a clause placing accident costs on Cobbina. Interpreting clauses (2) and (3), the court held title remained with the second defendant because payment was incomplete. Although lacking direct proof of master–servant control, the court applied the ownership presumption and Denning LJ’s agency principle from Ormrod to find a joint venture: Cobbina drove with the owner’s consent for the owner’s purposes. The owner was vicariously liable; both defendants were held jointly and severally liable.