SHELL COMPANY OF GHANA LTD. v. SARPONG

JUDGMENT OF APALOO J.A.

Apaloo J.A. delivered the judgment of himself and Amissah J.A. The respondent is a young woman who in 1966 was employed as a pump attendant at an Agip petrol filling station in Kumasi. She was then aged 22 and was in receipt of income at the rate of N¢13 per month. At about 12 noon on 27 October 1966 she was sitting under a tree close to the kerb at the station when a Bedford tanker No. AT 6897 driven by one James Marfo collided with her. Her right leg was almost completely crushed under the lorry and she received a number of injuries to other parts of her body. She lost consciousness as a result of her injuries. She regained it at the hospital a fortnight afterwards.

The action which culminated in this appeal was accordingly brought to recover damages for her injuries and such income as she lost by reason of the accident. In addition to James Marfo the actual tortfeasor, two other persons were sued, namely, a P. K. Nsiah and Shell Company of Ghana Ltd. The former was the master of the driver Marfo and the latter was the legal owner of the tanker. These two were joined to the action, apparently because the respondent conceived that they were both vicariously liable for the tort of the said Marfo. The action was at first instituted in the circuit court where the respondent obtained interlocutory judgment against Marfo and his master Nsiah for their default in entering appearance. Shell Company of Ghana Ltd. resisted the action in the circuit court and in the High Court to which the suit was later transferred. We shall refer to it subsequently in this judgment as the appellant. It filed a statement of defence in which it denied vicarious liability for the tort of James Marfo. It averred that the tanker which Marfo drove in committing the tort was on 23 August 1966 sold on hire-purchase terms to the said Nsiah. It averred further that the tanker was thereafter delivered to Nsiah who had complete control of it and that not only was the driver Marfo not its servant but his existence was completely unknown to it. The appellant made good these averments at the trial and the learned judge rejected the respondent's claim that the appellant was liable to her on the basis of vicarious responsibility.

It became obvious to the respondent's solicitor on receipt by him of the appellant's statement of defence, that the claim against the appellant on the principle of respondeat superior might run into difficulties. Accordingly, he sought and obta