ENTERPRISE INSURANCE CO. LTD. vs. ABBAN [1980]DLHC1577

Date	1980-04-17
Suit No.
Citation No.	[1980]DLHC1577

JONES-MENSAH J.

SOTOMEY FOR THE SECOND DEFENDANT-APPLICANT.

AWUAH FOR THE PLAINTIFF-RESPONDENT.

[1980]DLHC1577
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													<main id="main" class="content" style="min-height: 60rem" >ENTERPRISE INSURANCE CO. LTD. <o:p></o:p>vs. <o:p></o:p>ABBAN<o:p></o:p>[HIGH COURT, KUMASI] <o:p></o:p>[1980] GLR 440<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
17
APRIL 1980<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">

SOTOMEY FOR THE SECOND DEFENDANT-APPLICANT.<o:p></o:p>

AWUAH FOR THE PLAINTIFF-RESPONDENT.<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">

JONES-MENSAH J.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF JONES-MENSAH J.<o:p></o:p>The plaintiff’s
suit against the defendants is for the benefit of the estate of his mother, Ama
Mends (deceased), for himself and for other dependents of the deceased. Ama
Mends was killed in a motor accident involving motor vehicle GM 2138 which
belonged to the first defendant, the insured. The said vehicle was at the time
of the accident insured by the second defendant-company. The plaintiff founded
his claim on negligence against the insured and joined the second defendant as
insurer of the first defendant by virtue, he says, of the obligations of the
second defendant to the deceased under the Motor Vehicles (Third Party
Insurance) Act, 1958 (No. 42 of 1958).<o:p></o:p><o:p>&nbsp;</o:p>The
present motion which is brought by the insurer, the second defendant, prays for
an order to discharge it from the action on grounds that the plaintiff has no
cause of action against the insurance company and could not therefore have
properly joined the insurance company in this action. Counsel’s argument was
that neither at common law nor under statute could the plaintiff bring an
action against the insurers of the first defendant, since qua insurers, their
obligation to the plaintiff matures only after a third party judgment had been
obtained against the insured. Mr. Sotomey, counsel for the second defendant,
relied mainly on the case of Armon v. Katz [1976] 2 G.L.R. 115, C.A. to make
this point. However, Mr. Awuah, counsel for the plaintiff, in reply, contended
that the joinder was perfectly permissible and relied on Order 16, r. 4 of the
High Court (Civil Procedure) Rules, 1954 (L.N. 140A) and on the case of Bonsu
v. State Insurance Corporation [1977] 1 G.L.R. 303,C.A.<o:p></o:p><o:p>&nbsp;</o:p>It was
thought by both counsel that the Armon and Bonsu cases, which were both decided
by the Court of Appeal, were in conflict and that this court was therefore at
liberty to follow the better deserving of the two. The Bonsu decision is
regrettably not trouble-free because it did not confine itself to the issues
raised in the appeal. English decisions like West Wake Price &amp; Co. v. Ching
[1956] 3 All E.R. 821; Post Office v. Norwich Union Fire Insurance Society
[1967] 1 All E.R. 557, C.A.; Carpenter v. Ebblewhite [1939] 1 K.B. 347, C.A.
and Ghanaian decisions such as Armon v. Katz (supra); Yeboah v. Krah [1974] 1
G.L.R. 247 and Northern Assurance Co. v. Fulani, High Court, Tamale, 28 April
1970, unreported; digested in (1970) C.C. 72, do not seem to fit the glove of
the Bonsu decision and tend, at first glance, to haunt the validity of the
Bonsu decision.<o:p></o:p><o:p>&nbsp;</o:p>A close
examination of the Bonsu case, however, diffuses the difficulties it posed. The
simple question the Court of Appeal was called upon to decide in the case was
straightforward and it is only to the extent that the question was answered
that the ratio decidendi formulated in the case can be valid and binding. Their
lordships hit the kernel when they said at page 306, “In this appeal the legal
warrant of the circuit judge to pronounce on the issue of joinder or rather
misjoinder when no objection thereto had been taken is questioned. That is the
nub.” That indeed is the nub. Had their lordships rested their decision on a
square answer to the issues of the appeal, there would have been no bone to
pick with the judgment but their lordships went further and dropped a unique
pronouncement which shakes the roots of civil liability as we have always known
it. They said at p. 310:<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">“there
can ... be no justification for denying a plaintiff the right to join an
insurance company in one and the same action to determine both the liability of
the tortfeasor to the plaintiff and that of the insurer to the insured.”<o:p></o:p><o:p>&nbsp;</o:p>It is
this aspect of the Bonsu decision that is sour but happily it can be excised as
an obiter pronouncement. It was not necessary for settling the points raised in
the appeal nor was such a pronouncement germane to the appeal before their
lordships.<o:p></o:p>