ARMON AND ANOTHER vs. KATZ [1976]DLCA357

Date	1976-04-05
Suit No.
Citation No.	[1976]DLCA357

APALOO J.A

SOWAH J.A

FRANCOIS J.A.

R. KORSAH FOR THE APPELLANTS.

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS.

[1976]DLCA357
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													<main id="main" class="content" style="min-height: 60rem" >ARMON AND ANOTHER <o:p></o:p>vs. <o:p></o:p>KATZ<o:p></o:p>&nbsp;[COURT
OF APPEAL, ACCRA]<o:p></o:p>[1976] 2 GLR 115<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:
5 APRIL 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;
padding:0in 0in 0in 0in">

R. KORSAH FOR THE APPELLANTS.<o:p></o:p>

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS.<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 FRANCOIS JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.A.<o:p></o:p>This appeal
raises the somewhat novel but interesting questions as to what legal privileges
diplomatic agents enjoy in this country and how their immunity from the
domestic jurisdiction of our courts is proved. But before entering into an
examination of these questions, it is well to relate the facts.<o:p></o:p><o:p>&nbsp;</o:p>On 26
February 1967, the respondent who I shall hereinafter call the plaintiff, rode
in a car driven by the first appellant (hereinafter called the first
defendant). This car belonged to the second appellant (hereinafter referred to
as the second defendant). The latter is the father of the first defendant. At a
point along the Weija-Accra road, that car went into ditch and the plaintiff
suffered injuries. Both the plaintiff and the first defendant are infants
according to the laws of this country. The plaintiff was then
seventeen-and-a-half years of age and the first defendant was half-a-year her
senior, he being eighteen years old.<o:p></o:p><o:p>&nbsp;</o:p>On 18 May
1967, the plaintiff through her next friend Hanan Katz, caused to be issued
against both defendants a writ claiming “damages for injuries and loss suffered
by the plaintiff as a result of the negligence of the first defendant the
servant and/or agent of the second defendant.” To the writ, was attached a
statement of claim. That statement shows that the infant defendant was sued per
his mother, Mrs. Shalomo Armon, who was described as “his next friend.”
Although nothing on this case turned on this, perhaps I should point out that
while an infant sues by his next friend, he defends an action by his guardian
ad litem.<o:p></o:p>The record
shows that the writs were served on both defendants on the date of issue,
namely, 18 May. On 29 May 1967 both defendants entered conditional appearance “without prejudice to an application ... to
set aside the writ of summons . . . for want of jurisdiction on the grounds of
diplomatic immunity.”<o:p></o:p><o:p>&nbsp;</o:p>Paragraph
(6) of the statement of claim averred negligent driving against the first
defendant but no particulars of it were given. There were, however, particulars
of injuries and special damages alleged to have been suffered by the plaintiff.
Apart from the absence of the particulars of negligence, the plaintiff’s
pleading contains one peculiarity. The second defendant seems to have insured
the car in obedience to the requirements of section 3 of the Motor Vehicles
(Third Party Insurance) Act, 1958 (No. 42 of 1958). Although no relief was
sought against the insurers in this action and no issue can properly be joined
between them and the plaintiff, no less than four of the twelve-paragraph
statement of claim contain averments regarding insurance. But for the fact that
this irrelevant pleading was an important consideration in the court’s ruling,
this fact would have been unworthy of mention. Since the fact of insurance
weighed heavily with the trial judge, it is necessary to recite the averments
in the pleading specifically referable to it, namely, paragraphs (9)-(12):<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">“(9) The
plaintiff says that after the accident the second defendant gave the address of
the London &amp; Lancashire Insurance Co., Ltd. as his insurers and told the
plaintiff to contact the insurance for any claim she may have. <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">(10) The
plaintiff says that before she could contact the said insurance company, she
received a letter saying that passenger liability is excluded under the terms
of the policy and therefore no claim will be entertained by them. <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">(11) The
plaintiff will contend that she was not a passenger and that the insurance
company i</main>