ROYAL EXCHANGE ASSURANCE vs. BREW [1971]DLCA2159

Date	1971-01-25
Suit No.
Citation No.	[1971]DLCA2159

APALOO JA

SOWAH JA

ARCHER J.A.

E. K. AKYEA-DJAMSON FOR THE APPELLANTS.

E. M. A. ABLORH FOR THE RESPONDENT.

[1971]DLCA2159
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													<main id="main" class="content" style="min-height: 60rem" >ROYAL EXCHANGE ASSURANCE<o:p></o:p>&nbsp;vs. <o:p></o:p>BREW <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;[1971] 1 GLR 371<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:
25 JANUARY 1971.<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">

E. K. AKYEA-DJAMSON FOR THE APPELLANTS.<o:p></o:p>

E. M. A. ABLORH FOR THE RESPONDENT.<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">

APALOO, SOWAH AND ARCHER JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.A.<o:p></o:p>The
respondent was a passenger in vehicle No. WR 5374 which was involved in an
accident on 9 March 1964. She sustained injuries from this accident. The
vehicle was at the date of the accident driven by one Kow Sobir who was an
employee and servant of one Kofi Mensah. The latter was insured by the appellant-company.<o:p></o:p><o:p>&nbsp;</o:p>On 17
July 1964, the respondent instituted an action against the said Kow Sobir. The
evidence suggests that at that date she was unaware that the vehicle belonged
to Kofi Mensah who had insured it with the appellant company. Before she became
aware of this fact, she had already obtained interlocutory judgment against the
said Kow Sobir. That was on 28 October 1964.<o:p></o:p><o:p>&nbsp;</o:p>The respondent
was minded of joining Kofi Mensah to the action with the obvious object of
recovering any judgment she might obtain from the appellant-company who were
Kofi Mensah’s insurers. Accordingly, in compliance or purported compliance with
the provisions of section 10 (2) (a) of the Motor Vehicles (Third Party
Insurance) Act, 1958 (No. 42 of 1958), she served on the appellant-company
notice of her intention to proceed against the said Kofi Mensah. This was on 19
December 1964. On 19 January 1965, Kofi Mensah was joined to the action and the
evidence shows that the company prosecuted the action on his behalf and
disputed his vicarious liability to the respondent. In the result, they were
unsuccessful and the court found for the respondent against both Kow Sobir and
the company’s insured, Kofi Mensah. As the judgment-debt and costs were not
met, the respondent sought by this action to recover it from the company under
section 10 (1) of the Act. The company resisted the claim on the main ground
that the respondent failed to comply with section 10 (2) (a) of the Act which
enjoins an intending plaintiff to notify the insurer of the proposed action
before or within fourteen days after the commencement of the proceedings. The
company admitted, as indeed they could not deny, that a notice to commence
proceeding was given them on 19 December 1964, but they contended that it was
invalid inasmuch as the action was commenced on 17 July 1964 and that a notice
given in December of that year could not comply with the statutory requirement.<o:p></o:p><o:p>&nbsp;</o:p>The
respondent took the position that the proceeding, in so far as it affected the
appellants’ insured, was commenced on 19 January 1965 and complied with the
mandatory requirement of section 10 (2) (a) of Act No. 42 of 1958. Accordingly,
the main question which the learned judge was invited to decide was: When did
the proceeding against Kofi Mensah commence? If it did on 17 July 1964, then
the appellants’ case was made out; if it did on 19 January 1965, then the
appellants made no valid answer to the respondent’s claim. The learned trial
judge, Griffiths-Randolph J. held that the proceeding against Kofi Mensah
commenced on 19 January 1965 and that the respondent was therefore entitled to
recover the judgment-debt and costs from the company. This conclusion is
assailed by this appeal.<o:p></o:p><o:p>&nbsp;</o:p>It was
submitted by Mr. Akyea-Djamson for the company that there was only one cause of
action against both Kow Sobir and Kofi Mensah and that being so, the joinder of
Kofi Mensah did not result in the institution of a new action against him. It
was said it was only the July 1964 action brought against Kofi Sobir that was
continued. Accordingly, Mr. Akyea-Djamson argued that the date by which the
validity of the statutory notice should be judged was July 1964, and not
January 1965. From these premises, counsel contended that inasmuch as the
statutory notice was given to the appellant-company in December 1964, it sinned
against the compulsory requirement of section 10 (2) (a) of the Act and was bad
thereby. For this submission, he relied solidly on the English case of Staveley</main>