ROYAL EXCHANGE ASSURANCE vs. SALIFU KOJO AND OTHERS [1976]DLCA436

Date	1976-03-15
Suit No.
Citation No.	[1976]DLCA436

AMISSAH J.A

ARCHER J.A

KINGSLEY-NYINAH J.A.

JOE REINDORF FOR THE APPELLANTS.

W. BOSSMAN FOR THE FIRST RESPONDENT.

APPIAH FOR THE SECOND AND THIRD RESPONDENTS.

[1976]DLCA436
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													<main id="main" class="content" style="min-height: 60rem" >ROYAL EXCHANGE ASSURANCE<o:p></o:p>&nbsp;vs. <o:p></o:p>SALIFU KOJO AND OTHERS<o:p></o:p>&nbsp;[COURT
OF APPEAL, ACCRA]<o:p></o:p>[1976] 1 GLR 449<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:
15 MARCH 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">

JOE REINDORF FOR THE APPELLANTS.<o:p></o:p>

W. BOSSMAN FOR THE FIRST RESPONDENT.<o:p></o:p>

APPIAH FOR THE SECOND AND THIRD 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">

AMISSAH, ARCHER AND KINGSLEY-NYINAH
JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF AMISSAH J.A.<o:p></o:p>The
plaintiffs, an insurance company, brought an action for a declaration under
section 10 (3) of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42
of 1958), that they were entitled to avoid a policy of insurance issued by them
to the first defendant on the ground that it had been obtained either by
non-disclosure of material facts or by representations of facts which were
false in a material particular. Further or in the alternative they sought a
declaration that while the vehicle in respect of which the policy was taken,
namely, vehicle No. AS 7394 was registered and or used as a passenger vehicle,
the policy was inoperative or void. Aboagye J. declined to make the declarations
asked for and dismissed the plaintiffs’ claim. The aggrieved plaintiffs now
appeal to this court alleging errors on the part of the trial judge in arriving
at his conclusion.<o:p></o:p><o:p>&nbsp;</o:p>The case
was originally initiated against the first defendant, Salifu Kojo, alone. The
writ was issued on 2 October 1970. The statement of claim which followed was
terse and pointed. Stating that the plaintiffs were an insurance company
carrying on business in Ghana and that the defendant was a transport owner, it
went on to state that in the year 1967 the plaintiff entered into a contract of
insurance with the defendant in respect of a Bedford vehicle registration No.
AS 7394 issuing to him in respect of this contract policy No. C.V.5951/RG. The
statement of claim then dealt in one short paragraph with the plaintiffs’ cause
of complaint. That was paragraph (3) which stated 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
defendant in obtaining the said policy represented to the plaintiffs that the
said vehicle was one for the carriage of goods whereas in actual fact the same
was licensed and used for the carriage of passengers.”<o:p></o:p><o:p>&nbsp;</o:p>The first
defendant denied making the alleged representation.<o:p></o:p>Apparently,
the incident which immediately precipitated the plaintiffs’ action was an
accident occurring on 2 May 1970, in which the first defendant’s vehicle was
involved. Ibrahima Mahama Kuku-Na and Yakubu Haruna who claimed to have been
riding in another vehicle, registered No. AN 150, also owned by the first
defendant, alleged that they suffered injuries through the accident with the
vehicle in dispute. They had begun an action for damages against the first
defendant, which they eventually won. But meanwhile, they asked to be joined as
parties to the action now before us presumably in order to secure any damages
recovered from the first defendant. This request was acceded to and they became
second and third defendants in this case. They not only denied the position of
the plaintiffs, they also put in a counterclaim for a declaration that the
plaintiffs were or would be bound to pay to them or their satisfaction any
judgment which they would recover against the first defendant in the action
they had already brought against him arising out of the accident.<o:p></o:p><o:p>&nbsp;</o:p>Further
and better particulars of the misrepresentations alleged by the plaintiffs were
ordered by the court and these were eventually given as follows:<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">&nbsp;“The representations in the said paragraph (3)
referred to were made in writing and are contained in a document dated 7
November 1967 thumbprinted by the first defendant submitted to the plaintiffs
upon his application to be insured by the first defendant in respect of the,
vehicle No. AS 7394.”<o:p></o:p>