VICTORIA DANQUAH (PLAINTIFF) vs. MICHAEL OBIRI AND STAR ASSURANCE COMPANY LIMITED (DEFENDANTS) [2019]DLHC7150

VICTORIA DANQUAH (PLAINTIFF) vs. MICHAEL OBIRI AND STAR ASSURANCE COMPANY LIMITE... [2019]DLHC7150

Date	2019-06-21
Suit No.	SUIT NO: GJ/1037/2019
Citation No.	[2019]DLHC7150

HIS LORDSHIP SAMUEL K. A. ASIEDU J.

ABDUL GAFAR ABLORH ABORDO ESQ. FOR PLAINTIFF.

EMMANUEL ASARE ESQ. FOR 2ND DEFENDANT.

[2019]DLHC7150
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													<main id="main" class="content" style="min-height: 60rem" >VICTORIA DANQUAH<o:p></o:p>(PLAINTIFF)<o:p></o:p>vs.<o:p></o:p>MICHAEL OBIRI AND STAR
ASSURANCE COMPANY LIMITED<o:p></o:p>(DEFENDANTS)<o:p></o:p><o:p>&nbsp;</o:p>[HIGH COURT (COMMERCIAL DIVISION), ACCRA]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT
NO: GJ/1037/2019&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp;DATE: 21ST JUNE, 2019<o:p></o:p>

</div>COUNSEL: <o:p></o:p>ABDUL GAFAR ABLORH ABORDO
ESQ., FOR PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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EMMANUEL
ASARE ESQ., FOR 2ND DEFENDANT.&nbsp;&nbsp; <o:p></o:p>

</div>CORAM:<o:p></o:p>HIS LORDSHIP SAMUEL K. A. ASIEDU,
J.<o:p></o:p><div style="mso-element:para-border-div;border-top:solid windowtext 1.5pt;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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mso-border-bottom-alt:solid windowtext 1.5pt;padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">RULING<o:p></o:p>

</div>The
issue raised by this application is whether or not a plaintiff who has been
injured by an insured vehicle, can sue the tortfeasor and the insurance company
at the same time and recover damages against them. The 2nd
defendant/applicant, the insurance company herein answers the question in the
negative whiles the plaintiff/respondent answers the question in the
affirmative. All the answers are not unexpected because they serve the
respective interest of the parties. The applicant relies on the case of Amponsah vs. Appiagyei [1982-83] GLR 96
which answers the question in the negative whiles the respondent relies on Bonsu vs. State Insurance Company [1977] 1
GLR 303.<o:p></o:p>The
case of Amponsah vs. Appiagyei was decided in 1982 by the High Court whiles the
case of Bonsu vs. State Insurance Company was decided by the Court of Appeal in
1977 and so, ordinarily, the decision of the Court of Appeal should be binding.<o:p></o:p>However,
prior to the decision of the Court of Appeal in the Bonsu case, there were earlier
decisions contrary to the position taken by the Court of Appeal. These earlier
decisions have been given by the Supreme Court and the Court of Appeal and they
were all binding on the Court of Appeal which decided the Bonsu Case. See
articles 129(3) and 136(5) of the Constitution. It was pointed out in Republic vs. High Court, Accra Ex parte
Darke XII [1992] 2 GLR 688 the court held that:<o:p></o:p>“The
doctrine of judicial precedent and obedience to the principles enshrined in our
laws to enforce the authority of the hierarchy of our courts must be strictly
adhered to. It will be a very sad day when the idea gains currency that
superior court judges can take pot shots at each other’s judgments as if the
judgments were clay ducks in an amusement centre.”<o:p></o:p>See
Harley vs. Ejura Farms [1977] 2 GLR 179;
Republic vs. Court of Appeal ex parte Sidi [1987-88] 2 GLR 170; Boakye vs.
Tutuyehene [2007-2008] SCGLR 970 @979.<o:p></o:p>In
Farmers Services Co. Ltd vs. Julisam Ltd
&amp; Salifu, [2007-2008]
SCGLR 491 it was held by the Supreme
Court that:<o:p></o:p>“The court
of Appeal was bound by its previous decisions in terms of article 136(5) of the
Constitution only when the decisions had been given on the merits in
determining the issues before the court”&nbsp;
<o:p></o:p>Indeed,
it has been held in Royal Exchange
Assurance v. Owusu [1965] GLR 490 by the Supreme Court that:<o:p></o:p>for a victim of a road accident to be able to sue
the insurers of the vehicle which injured him under section 10 (1) of the Motor
Vehicles (Third Party Insurance) Act, 1958, three conditions must be fulfilled:
first, the injured party must have obtained a judgment against the insured; secondly, the judgment must be in
respect of a liability which is required to be covered by compulsory insurance
under the Act; and thirdly, the terms of the policy issued to the insured
should in fact cover the liability in question or should have covered it but
for the fact that the insurers were entitled to avoid or cancel the policy, or
have avoided or cancelled it.<o:p></o:p>See
also Royal Exchange Assurance v. Brew
[1971] 1 G.L.R 371, CA. and Pokua v.
State Insurance Corporation [1973] 1 G.L.R. 335, CA all of which decided
that judgment ought to be obtained against the insured before an action could
be instituted against the insurer.<o:p></o:p>It
implies therefore that the plaintiff’s action against the 2nd
defendant herein is pre-mature. Thus, the 2nd defendant is, in the
circumstance, not a necessary and proper party to the instant action. The name
of the 2nd defendant is therefore struck out from the writ of
summons. The plaintiff is ordered to amend the writ of summons accordingly.<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;