POKUA vs. STATE INSURANCE CORPORATION [1973]DLCA2235

Date	1973-11-30
Suit No.
Citation No.	[1973]DLCA2235

BENTSI-ENCHILL J.S.C

AMISSAH JA

SOWAH J.A.

DAPAAH FOR THE APPELLANT.

H. P. SWANIKER (WITH HIM POBEE FOR THE RESPONDENTS).

[1973]DLCA2235
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													<main id="main" class="content" style="min-height: 60rem" >POKUA <o:p></o:p>vs. <o:p></o:p>STATE INSURANCE CORPORATION <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;[1973]
1 GLR 335<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:
30 NOVEMBER 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">

DAPAAH FOR THE APPELLANT.<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">

BENTSI-ENCHILL J.S.C., AMISSAH AND
SOWAH JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF BENTSI-ENCHILL J.S.C.<o:p></o:p>The
question raised by this appeal is of obvious public importance affecting not
only insurance companies but everybody else, whether as insured motorists or as
the potential victims of motor accidents. Does our Motor Vehicles (Third Party
Insurance) Act, 1958 &nbsp;(No. 42 of 1958),
hereinafter referred to as the Act, place any restrictions on the contractual
freedom of insurance companies to issue third party policies subject to
conditions which can result in avoiding liability to third parties injured as a
result of the use of vehicles required to be covered by such insurance? More
specifically, where a policy of third party motor insurance contains a
suspensory condition rendering the policy inoperative whenever the insured
vehicle is driven by someone other than the person named in the policy as the
driver, is the insurer nevertheless rendered liable by the Act to a third party
injured whilst the vehicle is being driven by someone other than the named
driver? The facts of the case giving rise to this question are as follows:<o:p></o:p>(1) Facts
and issues of the case<o:p></o:p><o:p>&nbsp;</o:p>By a
judgment of the Circuit Court, Kumasi, dated 13 July 1967 Adjoa Pokua, the
appellant in this case, was awarded ¢2,400 with ¢200 costs against one C. Y.
Bandoh in respect of personal injuries caused by the negligent driving of one
Ibrahim Moshie, a driver then in charge of Bandoh’s vehicle insured by the
State Insurance Corporation, the respondents in this appeal.<o:p></o:p>Following
this judgment the appellant instituted proceedings in the same court claiming
that the respondents as insurers of the said vehicle in accordance with the provisions
of the Act, were liable under section 10 thereof to satisfy the judgment thus
obtained by her against Bandoh.<o:p></o:p>This
action did not proceed to trial, and the only evidence additional to what may
be gathered from the pleadings was documentary, consisting of the policy of
third party insurance issued to Bandoh by the respondents which was marked
exhibit B, the certificate of insurance relating to this policy marked exhibit
A and the judgment in the case entitled, Adwoa Pokua v. C. Y. Bandoh by which
the appellant was awarded the damages and costs mentioned above.<o:p></o:p><o:p>&nbsp;</o:p>It is
evident from these documents that the facts relied on by the parties for their
main contentions in the pleadings are indisputable, notwithstanding the
respondents’ general traverse of the appellant’s statement of claim. And this
presumably explains why, upon the close of the pleadings and at the request of
the appellant’s counsel in the summons for directions, an order was made for
preliminary argument on the issues of law raised on the pleadings. Following
the preliminary argument which covered many days, a brief, clear and
straightforward ruling was delivered by his honour Judge Apatu-Plange, the
learned circuit court judge, by which he held that the appellant’s claim must
fail. It is from this ruling that the present appeal has been brought.<o:p></o:p><o:p>&nbsp;</o:p>It seems
to me necessary to point out by way of a practice direction that, since the
respondents by their statement of defence did not admit the averments in the
appellant’s statement of claim, the mere fact that they also raised a point of
law does not justify the procedure adopted in the court below. In circumstances
of this kind where the resolution of issues of law depends on findings
regarding disputed issues of fact, it is the peculiar province of the court of
first instance to make the requisite findings of fact either upon trial or
pursuant to admis</main>