GUARDIAN ASSURANCE CO., LTD. vs. ADABIE [1976]DLCA391

Date	1976-05-17
Suit No.
Citation No.	[1976]DLCA391

AMISSAH J.A

JIAGGE J.A

SOWAH J.A.

LOKKO FOR THE APPELLANTS.

DR. EKOW DANIELS FOR THE RESPONDENT.

[1976]DLCA391
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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>ADABIE<o:p></o:p>&nbsp;[COURT
OF APPEAL, ACCRA]<o:p></o:p>[1976] 2 GLR 326<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 MAY 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">

LOKKO FOR THE APPELLANTS.<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">

AMISSAH, JIAGGE AND SOWAH JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMISSAH J.A.<o:p></o:p>The appellants
are an insurance company. They had been brought in as third parties in an
action arising out of a motor accident. The plaintiff had sued the defendant
for the damage done to his car when the defendant’s car through the negligent
driving of the defendant himself collided with the plaintiff‘s car. The
defendant was insured with the appellants and brought them in to indemnify him
against whatever damages or costs might be awarded against him. The trial
circuit judge, Mr. Sampson, awarded the plaintiff a total of ¢2,419.23 with
¢120.00 costs. He further found that the appellants were liable to make these
sums, less ¢150.00 which the defendant under the insurance policy was obliged
to pay on each claim, good to the plaintiff. The appellants are aggrieved by
this decision, hence this appeal. The appellants are aggrieved because they
claim that their liability under the policy of insurance determined when the
defendant, contrary to the terms of the policy, pleaded guilty to the criminal
charge brought against him as a result of the accident. The defendant had
indeed pleaded guilty. And he had done so without asking the consent of the
appellants. Apparently, two reasons led the judge to his conclusion. The first
was a finding of fact that he made. He had in the course of his judgment found
that: “There is no portion in exhibit 3 [meaning the insurance policy]
requiring that the insurance company’s liability. Under the policy will cease
if a person insured with their company plead guilty in court.” And later on the
learned judge said, “No term of the conditions appears to have been
contravened.” This is simply incorrect. The part of the insurance policy which
deals with the conditions has the following provisions:<o:p></o:p><o:p>&nbsp;</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)
Notice shall be given in writing to the company immediately upon the occurrence
of any accident or loss or damage and in the event of any claim. Every letter
claim writ of summons and/or process shall be forwarded to the company
immediately on receipt by the insured. Notice shall also be given in writing to
the company immediately the insured shall have knowledge of any impending
prosecution inquest or fatal injury in respect of any occurrence which may give
rise to a claim under this policy. <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) No
admission offer promise payment or indemnity shall be made or given by or on
behalf of the insured without the written consent of the company which shall be
entitled if it so desired to take over and conduct in the name of the insured
the defence or settlement of any claim or to prosecute in the name of the
insured for its own benefit any claim for indemnity or damages or otherwise and
shall have full discretion in the conduct of any proceedings or in the
settlement of any claim and the insured shall give all such information and
assistance as the company way require.”<o:p></o:p><o:p>&nbsp;</o:p>Then
paragraph (9) of the conditions provides 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">“The due
observance and fulfillment of the terms conditions and endorsement of this
policy in so far as they relate to anything to be done or complied with by the
insured and the truth of the statements and answer in the said proposal shall
be conditions precedent to any liability of the company to make any payment
under this policy.”<o:p></o:p><o:p>&nbsp;</o:p>A plea of
guilty is an admission. It admits the acts charged. So that though under the
present rules of evidence a conviction after a contest is not, according to the
rule in Hollington v. Hewthorn (F.) &amp; Co. Ltd. [1943] K.B. 587, C.A
admissible in a civil case as evidence of the facts on which it is based, a
plea of guilty in the criminal trial is receivable in evidence at the trial of
the civil case as an admission under an exception to the rule against hearsay:
see R. v. Fontaine Moreau (1848) 11 Q.B. 1028; English v. Richmond and Pulver
(1956) 3 D.L.R. (2d) 385; Ferris v. Monahan (1956) 4 D.L.R. (2d) 539; Cromarty
v. Monteith (1957) 8 D.L.R. (2d) 112 and Cohen and Rudelier v. Bates and Sensor
&amp; Sons Ltd. (1962), 32 D.L.R. (2d) 663. Paragraph (2) of the conditions
above quoted expressly provide that no admission shall be made by or on be</main>