Jalloh v Conteh, 1972-73 ALR S.L. 203

SECTION 29 JALLOH v. CONTEH,l972-73 ALR S.L. 203 H.C. allowed to complete the purchase of the vehicle, he might have been able to dispose of it for a reasonable sum after having realised the purchase price and incidental expenses. In the circumstances I award the sum of LelOOO as general damages to the plaintiff. The plaintiff is also claiming the sum of Le2762.81, being the 5 amount already paid to the defendants' company. I have said earlier from my own calculation of the 61 receipts that the plaintiff paid the sum ofLe2169.61 plus the sum of Lel84.85 deposit. This gives a total of Le2354.46. Following the principle of Tambiah, J.A. in the case of S.C.O.A. Ltd. v. Cassell (6) (1968--69 ALR 10 S.L. at 138) that- "there is no reason why damages should be granted up to the date of judgment," I believe as in the case just cited, that the plaintiff should be entitled to the amount he deposited, and I order that the sum of Le2354.46 be paid by the defendants to the plaintiff, that being the amount paid by the 15 plaintiff by instalments in order to complete the purchase of the vehicle. The plaintiff will have his costs which are to be taxed. Judgment for the plaintiff. JALLOHv. CONTEH High Court (During, J.): July lOth, 1972 (Civil Case No. 73/72) [1] Succession-executors and administrators-right to maintain proceedings -fatal accidents-if personal representative fails to sue within six months, person entitled to benefit may bring action: An action under the Fatal Accidents Acts may be maintained by and in the name of any person entitled to share in the estate at any time from the death of the deceased if a grant of representation to the deceased's estate is not made, but if such a grant is made an action may be maintained by any person entitled to share only on the expiration of six months from the death if the personal representative has failed to bring an action within that time; in any event the action must be brought within three years (page 206, lines 21-27, lines 37-40; page 207, lines 14-17). [ 2] Time-time for bringing action under Fatal Accidents Acts-person entitled to benefit may bring action immediately if no personal represen­ tative appointed or after six months if personal representative fails to sue-action to be brought within three years: See [1] above. [ 3] Tort-death-proceedings in respect of death-fatal accidents-person entitled to benefit may bring action immediately if no personal represen· tative appointed or after six months if personal representative fails to sue-action to be brought within three years: See [ 1] above. 203 20 25 30 35 40 5 10 15 20 25 30 35 THE AFRICAN LAW REPORTS [ 4] Tort-negligence-fatal accidents-person entitled to benefit may bring action immediately if no personal representative appointed or after six months if personal representative fails to sue-action to be brought within three years: See [ 1] above. The plaintiff brought an action against the defendant to recover damages for the pain and suffering caused to her husband and his subsequent death, all being caused by the defendant's negligent driving. The plaintiff's husband died on August 15th, 1971 after being hit by the defendant's car. Letters of administration were not granted to anyone in respect of the deceased's estate, but on February lOth, 1972, less than six months after the death, the plaintiff, suing as widow and purporting to sue as personal rep­ resentative of the deceased, instituted the present proceedings under the Law Reform (Miscellaneous Provisions) Act (cap. 19), alleging negligence on the part of the defendant. Her statement of claim was subsequently amended to state that the action was also brought under the Fatal Accidents Acts. The defendant denied negligence, contending that the accident was caused by the deceased's own negligence. He also contended that- (a) the plaintiff was not competent to sue under the Law Reform (Miscellaneous Provisions) Act (cap. 19), since she had not obtained a grant of letters of administration of the deceased's estate; and (b) since the plaintiff was neither the executor nor the administrator of the deceased's estate she was not competent to sue under the Fatal Accidents Acts within six months of the deceased's death. In reply the plaintiff contended that since there was no executor or administrator she was entitled to bring the action under the Fatal Accidents Acts at any time within the overall three year limitation period. The plaintiff's right to sue was recognised and she was awarded damages. Case referred to: (1) Holleran v. Bagnell (1879), 4 L.R. Ir. 7 40. Legislation construed: Fatal Accidents Act, 1864 (27 & 28 Viet., c.95), s.1: 40 The relevant terms of this section are set out at page 206, line 41- page 207, line 11. 204 r I JALLOH v. CONTEH, 1972-73 ALR S.L. 203 Smythe, Q.C. and Metzger for the plaintiff; Riby-Williams and Kamal for the defendant. DURING, J.: H.C. In her statement of claim endorsed on the writ of summons herein, the plaintiff claims damages for the pain, suffering and death of Ibrahim Jalloh caused through the negligent driving of the defendant. The plaintiff in her statement of claim averred that she was the widow and personal representative of Ibrahim Jalloh, deceased, and brings this action on behalf of herself and the chil­ dren of the deceased as well as on behalf of his estate. She alleged in the said statement of claim that on or about August 14th, 1971, the deceased was walking along Motor Main Road, Congo Town, by the College Road junction, when he was hit by vehicle WR 5590 then being driven by the defendant as a result of which the said Ibrahim Jalloh died. She averred that the defendant drove negli­ gently. In her statement of claim she gave particulars of negligence. In his statement of defence the defendant contended that the plaintiff was not competent to bring this action. He denied negli­ gence and stated that the deceased was not walking but stooping on the highway along Motor Main Road, Congo Town, on a dark rainy night, wearing a black rain coat and collecting the remains of a dead dog with a shovel. The defendant denied that it was the said vehicle that hit the deceased and stated that the accident was caused wholly or in part by the negligence of the deceased. He gave particulars of alleged negligence, one of which was "throwing a shovel at the on-coming vehicle thus impeding the driver's capacity to manage or control his vehicle to avoid an accident." A reply was delivered and filed herein by the plaintiff denying that the accident was caused wholly or in part by the negligence of the deceased. She also denied that it was the deceased who collided with the defendant's vehicle and that he failed to move away from the approaching traffic. The defendant delivered a counterclaim. During his address before this court, Mr. Smythe, Q.C. sought leave to amend the indorsement on the writ of summons herein to state that the action is brought also under the Fatal Accidents Acts, 1846-1961. He was granted leave by the court. Mr. Riby-Williams, in his address before this court, contended that the plaintiff was at the date of the issue of the writ of sum­ mons herein incompetent to bring this action and submitted that the plaintiff had to wait for six calendar months after the death of 205 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS her husband before she could bring action under the Fatal Acci­ dents Acts, 1846-1961. He referred me to ss.l-3 of the Fatal Accidents Act, 1846. Learned counsel referred me to Fatal Acci­ dents Act, 1864, s.l. He stated that since death occurred on 5 August 15th, 1971 and the action was commenced on February lOth, 1972, the plaintiff did not wait for six months to elapse before bringing this action. Learned counsel submitted that on a claim by the plaintiff under the Law Reform (Miscellaneous Provisions) Act (cap. 19), the plaintiff would not succeed as she 10 had not in fact been granted letters of administration, nor was she entitled to letters as she was a Mohammedan. He referred me to s.9(1) and (2) of the Mohammedan Marriage Act (cap. 96). He submitted that the plaintiff had not proved negligence, since the defence of contributory negligence was pleaded by the defendant. 15 He referred me to the evidence of the plaintiff's witness, Matilda Close. Mr. Smythe, Q.C., counsel for the plaintiff, stated that this action has been brought by the plaintiff as a widow and also personally, as she was entitled to under the Fatal Accident Acts, 20 1846-1961. He submitted that at the date the writ was issued, this action brought by the plaintiff was competent. He submitted first, that where there is no executor or administrator of the estate of a deceased then a widow could bring an action by virtue of the Fatal Accident Acts at any time within three years, and secondly, 25 that where there is an executor or administrator and he does not act within six months then the widow and or other relations could bring an action under the said Acts. He referred me to 28 Halsbury 'sLaws of England, at 38, note (k ), where the learned editor, in support of the proposition that 30 where there is no executor or administrator, the action may be brought in the name of any or all of the relatives entitled to benefit under the Fatal Accident Acts, referred to the Irish case of Holleran v. Bagnell (1). Winfield on Tort, 8th ed., at 615 (1967) supports the view and 35 also refers to the said Irish case. Charlesworth on Negligence, 3rd ed., at 554 (1956) ·cites the Irish case in support of view that­ "if there is no executor or administrator, one of the dependants may bring an action within six months, without first waiting to see if a personal representative will be appointed .... "Section 1 40 of the Fatal Accidents Act, 1864 provides: "If and so often as it shall happen ... in any of the Cases 206 2L4IIIIij JALLOH u. CONTEH,l972-73 ALR S.L. 203 H.C. intended and provided for by the said Act that there shall be no Executor or Administrator ... or that there being such Executor or Administrator such Action as in the said Act mentioned shall within Six Calendar Months after the Death of such deceased Person ... have been brought by and in the 5 Name of his or her Executor or Administrator, then and in every such Case such Action may be brought by and in the Name or Names of all or any of the Persons (if more than One) for whose Benefit such Action would have been, if it had been brought by and in the Name of such Executor or 10 Administrator. . .. " In the section I have just quoted, the disjunctive "or" is used. In my opinion the contention of learned counsel for the defendant is untenable. I uphold the submission of learned counsel for the plaintiff that this action has been properly brought within the 15 time limited under the Limitation Act, 1961, that is to say within three years from date of death. [The learned judge then reviewed the evidence in detail including that of the Acting Master and Registrar who confirmed that letters of administration had not been granted to anyone in respect of the 20 deceased's estate. He concluded that the defendant had negligently caused the death of the deceased, that the plaintiff was entitled to sue under the Fatal Accidents Acts, and awarded the plaintiff damages of Le3,000.] Judgment for the plaintiff. 25 30 35 40 207