ESSUMANBA AND OTHERS vs. NORWICH UNION FIRE INSURANCE [1967]DLSC1497

Date	1967-06-02
Suit No.
Citation No.	[1967]DLSC1497

EDUSEI J.

AKYEA-DJAMSON FOR THE DEFENDANTS-APPLICANTS.

E. N. MOORE FOR THE PLAINTIFFS-RESPONDENTS.

[1967]DLSC1497
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													<main id="main" class="content" style="min-height: 60rem" >ESSUMANBA AND OTHERS <o:p></o:p>vs. <o:p></o:p>NORWICH UNION FIRE INSURANCE <o:p></o:p>[HIGH COURT, ACCRA]<o:p></o:p>[1967] GLR 400<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
2 JUNE 1967.<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

AKYEA-DJAMSON FOR THE DEFENDANTS-APPLICANTS.<o:p></o:p>

E. N. MOORE FOR THE PLAINTIFFS-RESPONDENTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

EDUSEI J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF OLLENNU J.<o:p></o:p>On 19 May
1967 this court struck out the defence as disclosing no reasonable defence and
entered judgment for the plaintiffs. The defendants are now asking the court to
review its judgment of 19 May 1967.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiffs obtained a judgment against the defendants’ insured at the High
Court, Cape Coast, on 1 July 1966 in a running down action. The defendants have
appealed to the Court of Appeal and an application for stay of execution is
pending in that court, a similar application having been refused in the High
Court, Cape Coast.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants refused to satisfy the judgment debt and costs after due notice had
been given them; the plaintiffs therefore instituted an action in this court
under section 10 of the Motor Vehicles (Third Party Insurance) Act, 1958 (No.
42 of 1958).<o:p></o:p><o:p>&nbsp;</o:p>It is
interesting to observe here that during the pendency of the Cape Coast suit,
the defendants herein engaged solicitors to defend their insured, Owusu-Ansah,
when according to their defence the vehicle which was the subject-matter of the
policy had been sold by the said Owusu-Ansah to a certain Obeng. This fact was
well known to the present defendants, the insurance company, and I fail to
understand why they did not take steps to avoid the policy of Owusu-Ansah.
Instead they engaged solicitors to defend Owusu-Ansah at the High Court, Cape
Coast, and the trial judge “pierced the veil covering the real ownership of the
vehicle” and he concluded that Owusu-Ansah, having regard to the evidence
before him, was the real owner of the vehicle in question. The judgment of the
High Court, Cape Coast, which is exhibited to the plaintiffs’ affidavit makes
the point clear that the vehicle was the property of Owusu-Ansah.<o:p></o:p><o:p>&nbsp;</o:p>It is
this same point that the defendants who were aware of the former Cape Coast
proceedings wish this court, also a High Court, to determine. I wonder whether
it is proper in the circumstances to do so since the point at issue is
justiciable by the two courts of equal jurisdiction and it has been decided by
the High Court, Cape Coast. This court is not sitting and cannot sit as an
appellate court in such circumstances.<o:p></o:p><o:p>&nbsp;</o:p>I am of
the opinion that the defendants shall not be liable to pay the judgment debt
and costs if they can bring themselves within the provisions of section 10 of the
Motor Vehicles (Third Party Insurance) Act, 1958. This counsel for the
defendants sought to do by relying on section 10 (2) (b) of the said Act. This
subsection reads thus “No sum shall be payable by an insurer under the
provisions of subsection (1)— . . . (b) in respect of any judgment so long as
execution thereon is stayed pending an appeal.” It is admitted that an appeal
against the judgment of the High Court, Cape Coast, has been lodged in the
Court of<o:p></o:p><o:p>&nbsp;</o:p>Appeal
and an application for a stay of execution is also pending in the Court of
Appeal, but a stay has not in fact been granted. My construction or
interpretation of this subsection is that a stay must have been granted by a
court of competent jurisdiction but it is not so in this case.<o:p></o:p><o:p>&nbsp;</o:p>