GUARDIAN ASSURANCE CO., LTD. vs. AGBEMATU [1972]DLCA2222

Date	1972-07-17
Suit No.
Citation No.	[1972]DLCA2222

AZU CRABBE JSC

PREMPEH J.S.C

ARCHER J.A.

J. B. QUASHIE-IDUN FOR THE APPELLANTS.

S. A. X. TSEGAH FOR THE RESPONDENT.

[1972]DLCA2222
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													<main id="main" class="content" style="min-height: 60rem" >GUARDIAN ASSURANCE CO., LTD. <o:p></o:p>vs. <o:p></o:p>AGBEMATU <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;[1972] 2 GLR 337<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

DATE:
17 JULY 1972.<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">

J. B. QUASHIE-IDUN FOR THE APPELLANTS.<o:p></o:p>

S. A. X. TSEGAH 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">

AZU CRABBE AND PREMPEH JJ.S.C. AND
ARCHER J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF ARCHER J.A.<o:p></o:p>The
respondent sustained severe injury in a motor accident on 11 August 1963, and
as a result his left leg was amputated. He successfully sued the driver of the
vehicle in which he was travelling at the time of the accident and was awarded
¢G4,000 damages and 80 guineas costs by the High Court, Accra, on 1 May 1964.<o:p></o:p><o:p>&nbsp;</o:p>The
driver of the said vehicle, before the accident, had taken out a third party
insurance policy issued by the present appellants. After a fruitless attempt by
the respondent’s solicitor to convince the appellants to pay the judgment debt
under the terms of the policy, the respondent took action against the
appellants by virtue of the provisions of section 10 of the Motor Vehicles
(Third Party Insurance) Act, 1958 (No. 42 of 1958), to recover the said
judgment debt. The appellants defended the action and disclaimed any liability
under the policy on the ground that the respondent was not a passenger but a
mate employed by the insured driver and as such the injury suffered by the
respondent was not a risk covered by the terms of the policy.<o:p></o:p>After
hearing evidence, the High Court sitting at Accra found as a fact that at the
material time the respondent was not the insured ,driver’s mate. Accordingly,
judgment was entered against the appellants who then appealed to this court.<o:p></o:p>The
grounds of appeal argued were:<o:p></o:p>(1) The
judgment cannot be supported having regard to the evidence led at the trial.<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(2) The learned trial judge was
wrong in refusing to attach any weight to the documents tendered by the defendants
and accepted in evidence.<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(3) The learned trial judge was
wrong in law in rejecting the documents sought to be tendered by the defendants
and marked Rl and R2.<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">(4) The costs awarded were
excessive.<o:p></o:p><o:p>&nbsp;</o:p>In his
evidence before the court below, the respondent maintained that he was a farmer
as well as a fisherman and had never been employed by the insured driver as the
latter’s mate. The respondent’s younger brother confirmed this piece of
evidence. The appellants on the other hand brought the insured driver to give
evidence on their behalf. This witness’s evidence-in-chief was devastating and
did not assist the appellants because it rather supported the respondent’s story.
The appellants, with leave of the court, treated him as a hostile witness and
confronted him with a previous statement he had made in exhibit 3 the motor
vehicle claim which the insured driver submitted to the appellants after the
accident. In exhibit 3, the insured driver had stated in the column dealing
with damage to third parties as follows: “One Kwadzovi Agbematu a mate on the
vehicle was injured and his left leg was amputated and he is still lying in the
Keta hospital.” This witness still denied he made such a statement exhibit 3
and explained that exhibit 3 was filled in for him by a man at Keta to whom he
usually paid his insurance premiums in connection with the policy in question.
Whether exhibit 3 was admissible in evidence is a matter I shall deal with
later in this judgment.<o:p></o:p>