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GHANA BAR REPORT 1993 -94 VOL 2

Managing Director, Ghana Food Distribution Corporation and another v Torto

COURT OF APPEAL

ESSIEM, ADJABENG, LUTTERODT JJA

14 OCTOBER 1993

Practice and procedure – Parties – Amendment – Defendants sued in their official designations as Managing Director and Area Manager respectively – Whether title of action may be amended on appeal – Or 15 r 6, High Court (Civil Procedure) Rules 1954 (LN 140A).

The plaintiffs instituted an action in the High Court against the Managing Director and Area Manager respectively of the Ghana Food Distribution Corporation, a statutory corporation, jointly and severally for reliefs including damages for wrongful dismissal and breach of contract of employment. The defendants entered conditional appearance and applied to set aside the writ on the ground that the designations in which they were sued were not legal entities and consequently the writ was incompetent. The judge dismissed the application on the ground that the two defendants could be sued as agents of the corporation. The defendants appealed to the Court of Appeal. At the hearing the plaintiff’s counsel applied to the court to amend the proceedings by substituting the corporation for the defendants.

Held: It was clear from the record that the plaintiffs’ action was against their employers of which the two defendants were officers. The defendants would not be prejudiced in any way or suffer any miscarriage of justice if the application for amendment was granted. Having regard also to the stage which the proceedings had reached, substantial justice would be done to strike out the defendants and substitute the corporation. Ohene v Principal Secretary of the Ministry of Finance [1971] 1 GLR 102, Van Gelder Apsimon Co v Sowerby, Bridge District Flour Society (1890) 44 Ch D 37, Ghana Industrial Holding Corporation v Vincenta Publications [1971] 2 GLR 24, Mussey v Darko [1977] 1 GLR 147, Robertson v Nii Akraman II [1973] 1 GLR 445 applied.

Cases referred to:

Ghana Industrial Holding Corporation v Vincenta Publications. [1971] 2 GLR 24, CA.

Ghana Ports and Harbours Authority v Issoufou [1991] 1 GLR 500, CA.

Mussey v Darko [1977] 1 GLR 147, CA.

Ohene v Principal Secretary of the Ministry of Finance [1971] 1 GLR 102.

Robertson v Nii Akraman II [1973] 1 GLR 445, CA.

Van Gelder Apsimon Co v Sowerby, Bridge District Flour Society (1890) 44 Ch D 37, 59 LJ Ch 583, 63 LT 132, 38 WR 625, 6 TLR 338, CA.

APPEAL against ruling of the High Court.

Nutsukpui for the appellants.

Aduama Osei, with him, Quainoo for the respondent.

LUTTERODT JA. On 10 April 1992, the plaintiffs, acting through their solicitor, issued a writ against the two defendants jointly and severally for three reliefs. These were for: “(a) Fifteen million cedis damages for wrongful dismissal or wrongful termination of the plaintiffs’ appointments; (b) Five million cedis damages for breach of contract with the plaintiffs; (c) An order that the salaries, allowances and entitlements of the plaintiffs be paid from 1988, when they were interdicted to the date of judgment with interest at the prevailing bank rate”.

As the accompanying statement of claim clearly spelt out, the two plaintiffs were, until 1988, in the employ of the Ghana Food Distribution Corporation, and were both stationed at the corporation’s depot at Wenchi in the Brong-Ahafo Region. The 1st plaintiff joined the corporation in or around 1973 while the 2nd did so some seven years later.

The two defendants, on the other hand, are the Managing Director and Area Manager respectively of the corporation and the claim clearly indicates that this action was brought against them in these capacities. On being served with the writ and accompanying statement of claim, the two defendants, also acting through their solicitors, entered conditional appearance and moved the court at a subsequent date to have both the writ and claim set aside.

The ground upon which they brought the application was simple. Counsel, as was expected of him, plainly laid out the grounds of his objection. Regrettably, plaintiff’s counsel seems to have missed the point, so did nothing to remedy the situation. This has thereby brought about an altogether unnecessary protraction of this litigation.

The point raised by the defendants was that the two positions in which they were sued were not legal entities and consequently the writ was incompetent. Unfortunately, the learned High Court judge dismissed the motion on the ground that it was misconceived since the two defendants, he felt, could be sued as agents of the corporation.

The defendants being dissatisfied with this ruling have now appealed to this court on one simple ground namely, that the learned trial judge erred in law when he held that, the action is maintainable against the named defendants.

At the hearing, plaintiffs’ counsel in one breath made our task both easy and difficult. It was the readiness with which he conceded that the proper person who ought to have been sued was the corporation and not the two defendants, which made our burden light. However, it was when counsel proceeded further to invite us nevertheless not to dismiss the action but rather save it by substituting the corporation for the defendants that our task became difficult; for then the issue we have to determine is whether this court has power to effect any such amendment.

What then are the arguments advanced on either side, as far this issue is concerned? It was contended on behalf of the plaintiffs that the trial court had power under order 15 rule 6 of the High Court (Civil Procedure) Rules 1954 (LN 140A) to substitute the parties. It was argued further that since an appeal was by way of a rehearing, this court could, on the authority of Ohene v Principal Secretary of the Ministry of Finance [1971] 1 GLR 102 and Van Gelder Apsimon Co v Sowerby, Bridge District Flour Society (1890) 44 Ch D 37, do what the High Court could have done, by the substitution of the Ghana Food Distribution Corporation for the named defendants in order that the real matters in controversy between the parties be determined and justice thereby done.

On the contrary, it was argued in favour of the named defendants that the two defendants are not legal entities and cannot be sued in the capacities in which they have been described. Consequently, it was contended since they were non-existent, there was no defendant before the court and an existing personality, like the corporation cannot be substituted in their stead. The authority counsel relied on in support of his argument is the well known case of Ghana Industrial Holding Corporation v Vincenta Publications [1971] 2 GLR 24, CA.

I have read the above case and come to the following conclusion. Firstly, it seems to me that that case turned on its own peculiar facts. In that case the respondents sued the appellants in the circuit court for the sum of N¢2,350 and won. The appellants being dissatisfied with the decision appealed on a number of grounds including one important legal one namely, that Vincenta Publications was the business name of one man and therefore the proprietor of that business could not sue as plaintiff under that business name. The respondent counsel conceded the point and sought, as had been done in this instant case, to have that name amended to read: Vincent Alisa Onuku trading under the firm name and style of Vincenta Publications.

The court refused the application, it seems to me, on the principal ground that no reasons had been advanced to show there had been a bona fide mistake or inadvertence on the part of the solicitors who issued the writ. The court also found the respondents were unwilling to divulge or disclose certain vital information to the court that would enable it do justice to the parties. The court thus found that the respondents lacked candour in a matter in which it was being called upon to exercise discretion.

The reason why I think it was for these reasons that the application was refused and not because there was no plaintiff before the court is this: had it been for the latter, the lack of candour on the part of the applicant, the fact that no reasons had been advanced in explanation of the inadvertence or mistake would not have mattered to the court. It would simply have refused the application on the ground simpliciter that an existing person could not be substituted for a non-existent person.

The discerning principle that I gather from this case therefore is that in deserving cases, the title of a suit can be amended by substitution even on appeal.

This is the undoubted conclusion reached by this court in the case of Ghana Ports and Harbours Authority v Issoufou [1991] 1 GLR 500, the facts of which are somewhat similar to the facts in the Vincenta Publications case. In the judgment of the court read by my learned brother, Adjabeng JA, the court, relying on a number of local authorities, the most notable being Mussey v Darko [1977] 1 GLR 147, concluded at page 511 of the report that: “There is no doubt that in certain circumstances the capacity of a party could be amended even on appeal”.

I have also read the case of Mussey v Darko in which the Vincenta Publications case was noted but distinguished. In that case, the appellant took up a similar complaint namely that there was no plaintiff in law at the date of the issue of the writ for which the respondent could be substituted, the original plaintiff being Okofoh Enterprises. It was no doubt a firm registered under the Registration of Business Names Act 1962 (Act 151). The sole proprietor was Rexford Ayeh Darko. After judgment, an application for substitution of the plaintiff named therein to R A Darko Trading as Okofoh Enterprises v A A Mussey was allowed, hence the appeal.

In this case also, the learned justices held that where the sole proprietor of a business mistakenly sued in the firm’s name and later gave a reasonable explanation for his mistake, the court could treat the mistake as a mere misnomer and grant an application to have the title to the writ amended. In a supporting judgment, Francois JA held that:

“Such amendments have been allowed where the purposes of justice require… or where it is necessary ‘to put right something which is incorrectly stated and to keep its records in line with the real position’... the court below had the power to correct a misnomer or a misdescription in title, to do substantial justice.” (Emphasis mine.)

I found this dictum most useful for, with respect to the application before us it leads me to ask the following pertinent questions:

1. Do the demands of justice require that this amendment be granted, having regard to the circumstances of this case? or

2. Who is the real defendant in this case as far as the writ and accompanying statement of claim shows?

3. Would the correction by substitution keep the record i.e. the writ and statement of claim, in line with the real position?

Again I would like to refer to this court’s decision in Robertson v Nii Akraman II [1973] 1 GLR 445 where it was held in the 3rd holding in the head note that:

“If a plaintiff sued in the wrong capacity, but some other capacity was disclosed which would have enabled him maintain the suit, he should not be non-suited but the court should allow all amendments necessary for the purpose of settling the real controversy between the parties.”

We would notice that the claim is based on the alleged wrongful dismissal and termination of the two plaintiffs’ appointments. They are quick to point out that they sued the 1st defendant in his capacity as the Managing Director. It is manifestly clear that the action is not against him in his personal capacity although they do not expressly say of the 2nd defendant also that he was being sued in his capacity as the Area Manager. I think we can safely assume so. Nowhere in the claim is it stated he is being sued in his personal or private capacity. This apart, even in their affidavit in opposition to the defendants’ motion to dismiss the suit, they describe the two persons as the “brains of the corporation”.

It is clear from the record that the action is intended against their employers and the two persons were only officers through whom the corporation acted.

The other important point is that the real grievance of the plaintiffs is that they have been wrongfully dismissed. There is nothing on the record to show that the plaintiffs have, in any way, misled or hid any facts from the courts. I do not think the defendants would be prejudiced in any way or suffer any miscarriage of justice let alone a substantial one if the application were granted.

On the contrary, having regard also to the stage which these proceedings have reached I would rather think the only way to do substantial justice, not to one party alone but to both is to strike out the names of the named defendants and substitute in their place the Ghana Food Distribution Corporation. For the named defendants who have been dragged to court and made to incur expenses which they would otherwise not have incurred, costs would be adequate compensation.

Accordingly, subject to striking out the names of the two defendants and substituting the Ghana Food Distribution Corporation, I would dismiss the appeal.

ESSIEM JA. I agree.

ADJABENG JA. I also agree.

Appeal dismissed.

S Kwami Tetteh, Legal Practitioner.

Damages - Quantum - Fatal accidents - Loss of dependency – Award to compensate for pecuniary loss to dependants, not as solatium.

Damages – Assessment – Appeals from – Appellate court entitled to substitute its award where basis of award not specified.

The plaintiffs, parents of a 13-year old pupil of a Middle School, Form 2, instituted an action for damages for the negligence of the defendants resulting in the death of the pupil in a motor accident. The 1st defendant was the owner and driver of the vehicle insured at the time by the 2nd defendant. It was found as a fact that the deceased was a brilliant pupil with a bright future. The trial judge gave judgment for the plaintiffs and awarded them a global sum of ¢600,000. The plaintiffs appealed against the award on the grounds that the award was woefully inadequate.

Held: (1) The award of damages was at the discretion of the trial judge. Once the basis of the award had been shown, unless the basis is wrong, an appellate court would have no justification for interfering with the award. In the instant case even though the learned trial judge made certain findings upon which he made his award, it was not clear how he arrived at the bulk figure. Even though he did not accept wholly the claim for funeral expenses, he did not specify how much he accepted. Besides he did not accept wholly the extent of services rendered by the deceased to his parents and grandmother but also omitted to quantify how much each dependant had lost, for which he made the global award. In the circumstances the appellate court would substitute its award.

(2) It had long been settled that damages were not awarded as a solatium for the bereaved but as compensation for the pecuniary loss suffered by the dependants of the deceased. If no pecuniary loss was proved, the defendant was entitled to succeed.

(3) It was not necessary that pecuniary advantage should actually have been derived from the deceased before his death. Damages were to be calculated with reference to a reasonable expectation of pecuniary benefit. Blake v Midland Rly (1852) 18 QB 93, Mallett v McMonagle [1969] 2 WLR 767 HL, Barnett v Cohen [1921] 2 KB 461, Taff Vale Rly Co v Jenkins [1913] AC 1 cited.

Cases referred to:

Barnet v Cohen [1921] 2 KB 461, 90 LJKB 1307, [1921] All ER Rep 528, 125 LT 733, 37 TLR 629, 19 LGR 623, 13 Digest (Repl) 173.

Blake v Midland Rly (1852) 18 Q B 93, 21 LJQB 233, 18 LTOS 330, 16 Jur 562, 17 Digest (Reissue) 216.

Mallett v McMonagle [1969] 2 WLR 767, [1970] AC 166, [1969] 2 All ER 178, 113 Sol Jo 207, [1969] 1 Lloyd’s Rep 127, [1969] NI at 105, HL.

Taff Vale Rly Co v Jenkins [1913] AC 1, 82 LJKB 49, 107 LT 564, 29 TLR 19, 57 SJ 27.

APPEAL against the award of damages in the High Court.

Cab-Addae for the appellants.

AMPIAH JA. The plaintiffs in this action were the parents of Master Tawiah Anaman who was killed in a motor accident. The plaintiffs, as administrator and administratrix respectively of the estate of the deceased, took action against the defendants for damages for negligence resulting in the death of their son.

The 1st defendant was the owner-driver of vehicle No GN 3588 which was involved in the accident, and which had been insured at the time by the 2nd defendant.

At the end of the trial, the learned trial judge gave judgment for the plaintiffs and awarded them a total of six hundred thousand cedis with costs of sixty thousand cedis against the defendants.

The defendants did not appeal against the judgment. The plaintiffs however have appealed against the judgment on the damages awarded.

Counsel for the plaintiffs contended that “having regard to the overwhelming evidence as to the loss suffered by the appellants, as a result of the death of Master Tawiah Anaman, and the excellent performance of the deceased at school, the damages of ¢600,000 awarded the appellants were woefully inadequate”.

The plaintiffs (hereinafter referred to as ‘the appellants’) did not claim any special damages. They however claimed for (i) loss of service to them and the grandmother, (ii) loss of prospective income and (iii) burial and funeral expenses.

The learned trial judge found that the deceased rendered some services to his parents and also acted as a house help to his aged grandmother. He however did not accept wholly the amount for services rendered; he did not state how much of the services he accepted and how much he would award the parents and the grandmother for the loss of such services. The learned trial judge also accepted that some funeral expenses were incurred but not to the extent claimed.

As stated earlier the damages claimed by the plaintiffs were general although specific amounts were mentioned in both the statement of claim and the evidence, for certain items. The learned trial judge awarded a bulk sum of ¢600,000 as damages. This, appellants regard as woefully inadequate.

The award of damages is at the discretion of the trial judge. Once a basis has been shown as to how the damages have been arrived at, unless the basis is wrong, an appellate court would have no justification for interfering with the award. In the instant case even though the learned trial judge made certain findings upon which he made his award, it is not clear how he arrived at the bulk figure.

Section 16(1) of the Civil Liability Act 1963 (Act 176) provides:

“Where the death of a person is caused by the fault of another such as would have entitled the party injured, but for his death, to maintain an action and recover damages in respect thereof, the person who would have been so liable shall be liable to an action for damages for the benefit of the dependants of the deceased.”

Section 18 of the Act provides that:

“The damages under section 16 of the Act shall be -

(a) the total of such amounts (if any) as the court considers proportionate to the loss resulting from the death to each of the dependants, respectively, for whom or on whose behalf the action is brought...”

Sub-section 5 of section 18 of the Act provides further that:

“(5) In addition, damages may be awarded in respect of expenses actually incurred by the deceased before his death and in respect of funeral and other expenses incurred by the dependants or the personal representative by reason of the wrongful act.”

The burial and funeral expenses claimed were ¢30,000. Even though the judge did not accept wholly the amount, he did not say how much of this he accepted. I would award the plaintiffs ¢29,000 for burial and funeral expenses.

The late Tawiah Anaman was a 13-year old Form 2 pupil of the AME Zion Middle School, Aboom, Cape Coast. The evidence shows that he was a brilliant pupil with a bright future. The judge found that he rendered services to his parents and grandmother who were all dependants. The judge did not however accept wholly the extent of the said service; he did not quantify how much each of the dependants had lost by the death of the deceased, though in the end he awarded a lump sum.

It has, however, for long been settled that damages are not awarded as a solatium for the bereaved but as compensation for the pecuniary loss suffered by the dependants of the deceased as a consequence of his death. See Blake v Midland Rly [1852] 18 Q B 93; Mallett v McMonagle [1969] 2 WLR 767, HL. If no pecuniary loss is proved, therefore, the defendant is entitled to succeed - Barnet v Cohen [1921] 2 KB 461; but it is not necessary that pecuniary advantage should actually have been derived from the deceased before his death. Damages are to be calculated in reference to a reasonable expectation of pecuniary benefit. So, in Taff Vale Rly Co v Jenkins [1913)] AC 1 where the deceased was an intelligent girl of 16 who had almost completed her apprenticeship as a dress maker, a jury's verdict in favour of the respondent was sustained notwithstanding that she had not as yet earned anything and had so far conferred upon them no actual pecuniary benefit. Contrast, Barnett v Cohen (supra), where the claim failed because the deceased was just 4 years old.

In the instant case actual pecuniary benefit was proved. Thus, given a life purchase of 12 years and taking an average loss of ¢1,500 a month, I would award the father ¢216,000. Taking an average loss of ¢4,000 a month to the mother, I would award her ¢576,000.

The grandmother died in 1985. The 2nd plaintiff spent on her in lieu of the deceased's services, for only 2 years. I would award the estate ¢9,600.

In conclusion, I would allow the appeal and vary the damages awarded by substituting ¢830,600 total damages.

ADJABENG JA. I agree.

LUTTERODT JA. I also agree.

Appeal allowed.

Justin Amenuvor, Legal practitioner.