DIAFO vs. STATE INSURANCE CORPORATION [1973]DLHC2376

Date	1973-11-06
Suit No.
Citation No.	[1973]DLHC2376

CHARLES CRABBE J.

HUGHES FOR THE APPLICANT.

C. CANN FOR THE RESPONDENTS.

[1973]DLHC2376
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													<main id="main" class="content" style="min-height: 60rem" >DIAFO <o:p></o:p>vs. <o:p></o:p>STATE INSURANCE CORPORATION <o:p></o:p>[HIGH COURT,
SEKONDI]<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]
2 GLR 371<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:
6 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">

HUGHES FOR THE APPLICANT.<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">

CHARLES CRABBE J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF CHARLES CRABBE J.<o:p></o:p>The
plaintiff issued a writ on or about 1 March 1968 against a Mr. Alphonse
Bullard, of Adisadel College, Cape Coast. This he did as the sole administrator
of the estate of one Thomas Tawiah. By that writ he claimed, for himself and on
behalf of the estate and other dependants of the late Thomas Tawiah, damages
for the injuries caused to, and the subsequent death of, the said Thomas Tawiah
by reason of the negligent driving of Mr. Alphonse Bullard (Bulliard).<o:p></o:p><o:p>&nbsp;</o:p>In
accordance with the provisions of paragraph (a) of subsection (2) of section 10
of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958),
notice of the action was given to the defendant corporation. On 27 July 1971,
the High Court of Justice gave judgment for the plaintiff against Mr. Alphonse
Bullard in the sum of ¢6,400.00 inclusive of costs of ¢400.00. The plaintiff
then gave notice, on 28 July 1971, to the defendant corporation of the judgment
obtained against Mr. Alphonse Bullard, an insured of the said corporation. This
judgment has not been satisfied. Thus on 22 May 1972 the plaintiff issued a
writ against the defendants claiming the judgment debt and costs amounting to
¢6,400.00.<o:p></o:p><o:p>&nbsp;</o:p>The
defendants entered appearance to the writ issued on 22 May 1972. The plaintiff
then applied under Order 14, rr. 1 and 2 of the Supreme [High] Court (Civil
Procedure) Rules, 1954 (L.N. 140A), for liberty to sign judgment against the
defendants. In the words of the plaintiff’s affidavit “they have no good
defence to the action on merits.” The defendants, through their lawful
representative at Takoradi, deposed to an affidavit that on the receipt of the
notice of the action between the plaintiff and Alphonse Bullard, the defendants
had to wait on their insured, Alphonse Bullard, for the writ but the defendants
never received that writ. It is contended that the judgment obtained against
Alphonse Bullard was invalid and therefore voidable for the reasons that:<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">“(1) The
writ of summons numbered 16/68 issued on 1 March 1968 ceased to be in force on
28 February 1969—and therefore at the time judgment was given no such action
was pending in court.<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) Since
the defendant was out of the country at the time of the issue and service of
the writ, service of it on the defendant should have been effected out of
jurisdiction and the substituted service effected by the plaintiff was
therefore bad in law. (3) If the true facts regarding the whereabouts of the
defendant Alphonse Bullard at the time the application for an order to serve
Alphonse Bullard by substitution had been known by the court, the court would
not have granted leave to the plaintiff, Kweku Diafo to proceed by substituted
service.”<o:p></o:p><o:p>&nbsp;</o:p>In the
circumstances the defendants caused a writ to be issued for the purpose of
setting aside the judgment obtained by the plaintiff against Alphonse Bullard.
Counsel for the plaintiff, in asking to sign final judgment against the
defendants, stated that the defendants had failed to satisfy the judgment obtained
against Mr. Alphonse Bullard, which by law, that is to say, according to the
provisions of section 10 of the Motor Vehicles (Third Party Insurance) Act,
1958, the defendants had to satisfy. He contended that the court had to go into
the question as to whether any writ had been issued by the defendants to have
the judgment set aside. If that had not been done then the judgment was of full
force. He was not aware that any action had been taken to set aside the
judgment. Neither was he aware that an appeal had been lodged. As such the
judgment was valid.<o:p></o:p>