BONSU vs. STATE INSURANCE CORPORATION AND ANOTHER [1976]DLCA1262

Date	1976-07-21
Suit No.
Citation No.	[1976]DLCA1262

JIAGGE JA

ANIN JA

FRANCOIS J.A.

OSEI FOR THE APPELLANT.

POBEE FOR THE RESPONDENTS.

[1976]DLCA1262
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													<main id="main" class="content" style="min-height: 60rem" >BONSU <o:p></o:p>vs. <o:p></o:p>STATE INSURANCE CORPORATION AND ANOTHER <o:p></o:p>[COURT OF APPEAL, ACCRA]<o:p></o:p>[1977] 1 GLR 303<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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DATE:
21 JULY 1976<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;
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OSEI 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;
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JIAGGE, ANIN AND FRANCOIS JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF FRANCOIS J.A.<o:p></o:p>Francois
J.A. delivered the judgment of the court. On 27 April 1976 we allowed this
appeal and now proceed to give our reasons for so doing.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff sustained serious injuries when she was thrown into a ditch while
travelling in the defendant’s vehicle No. AT 3985. She sued for negligence and
joined the State Insurance Corporation as the co-defendants. The defendant did
not contest the action. He could not be found and the action proceeded against
him after an order granting substituted service had been obtained.<o:p></o:p><o:p>&nbsp;</o:p>In her
statement of claim setting out the cause of action, the plaintiff explained why
she had joined the co-defendants. She said in paragraph (10): “The plaintiff
further says that the co-defendants subsequently denied ever insuring the
defendant’s vehicle and thereby creating a dispute between them.” The plea was
admitted by the co-defendants in paragraph (3) of their statement of defence to
which was added the following paragraphs:<o:p></o:p>“(4)
Further to paragraph (3) above the co-defendants will contend at the trial of
this suit that at the material time of the alleged accident they were not the
insurers of the vehicle No. AT 3985 and so will put plaintiff to strict proof
of her contention that the co-defendants were the insurers of the vehicle No.
AT 3985 as at the date of the incident. (5) The co-defendants will further
contend at the trial of this suit that the action brought against them by the
plaintiff is misconceived and should be dismissed with costs.”<o:p></o:p><o:p>&nbsp;</o:p>It will
be noted that the nature of the misconception under which the plaintiff
laboured was not disclosed. But more importantly, the co-defendants admitted to
a dispute between the plaintiff and themselves relating to their liability as
insurers of the defendant.<o:p></o:p><o:p>&nbsp;</o:p>Since
paragraph (4) of the defence above was vague on the question whether the
defendant had ever been insured by them or whether the insurance cover had
lapsed “at the material time of the alleged accident,” the plaintiff was
compelled to apply for interrogatories to clarify the position. The answers
showed that the defendant’s vehicle No. AT 3985 had once been insured with the
co-defendants for a period of a year in 1967, lapsing in January 1968. The
co-defendants denied issuing to the defendant a certificate bearing number
90941 but admitted granting cover with a note issued on 19 February 1968 with
the identical number 90941. They explained that they were “induced to issue
number 90941 as continuation cover in respect of vehicle No. AT 3985, the
defendant having falsely represented to the branch office at Kumasi that the
cover note number 601921 had originally been issued at Accra in respect of the
said vehicle.”<o:p></o:p><o:p>&nbsp;</o:p>The
co-defendants thereafter amended their defence to plead that the cover note No.
90941 was “void for all purposes.” That amendment was urged as “necessary for
the purpose of determining the real questions in controversy between the
parties.” A significant controversial issue between them, being the fraud on
the part of the defendant which had induced them to issue the cover note. They
contended in paragraph (5) that they were “entitled to avoid the contract of
insurance on the ground of fraud and or misrepresentation.” The co-defendants
then proceeded to counterclaim for a declaration that the cover note No. 90941
was “void for all purposes” and consequently they were “not liable to satisfy
any judgment that may be given against the defendant.” The plaintiff in her
reply joined issue on the effective validity of the said cover note.<o:p></o:p>