GUARDIAN ASSURANCE CO., LTD. v. AGBEMATU [1972] 2 GLR 337
COURT OF APPEAL
Date: 17 JULY 1972
BEFORE: AZU CRABBE AND PREMPEH JJ.S.C. AND ARCHER J.A.
CASES REFERRED TO
(1) W. & M. Wood (Haulage), Ltd. v. Redpath [1967] 2 Q.B. 520; [1966] 3 W.L.R. 526; 110 S.J. 673;
[1966] 3 All E.R. 556; [1966] 2 Lloyd’s Rep. 258.
(2) Jarman v. Lambert & Cooke (Contractors), Ltd. [1951] 2 K.B. 937; [1951] 2 T.L.R. 117; 95 S.J.
528; [1951] 2 All E.R. 255, C.A.
(3) R. v. Harris (1927) 20 Cr.App.R. 144, C.C.A.
(4) Ofori v. Ankrah, Court of Appeal, 21 March 1969, unreported; digested in (1969) C.C. 58, C.A.
[p.339] of [1972] 2 GLR 337
NATURE OF PROCEEDINGS
APPEAL against a judgment of the High Court, Accra, rejecting the appellants’ disclaimer of liability
under a policy of insurance in a running down action. The facts are set out fully in the judgment of Archer
J.A.
COUNSEL
J. B. Quashie-Idun for the appellants.
S. A. X. Tsegah for the respondent.
JUDGMENT OF ARCHER J.A.
The respondent sustained severe injury in a motor accident on 11 August 1963, and as a result his left leg was amputated. He successfully sued the driver of the vehicle in which he was travelling at the time of the accident and was awarded ¢G4,000 damages and 80 guineas costs by the High Court, Accra, on 1 May 1964.
The driver of the said vehicle, before the accident, had taken out a third party insurance policy issued by the present appellants. After a fruitless attempt by the respondent’s solicitor to convince the appellants to pay the judgment debt under the terms of the policy, the respondent took action against the appellants by virtue of the provisions of section 10 of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958), to recover the said judgment debt. The appellants defended the action and disclaimed any liability under the policy on the ground that the respondent was not a passenger but a mate employed by the insured driver and as such the injury suffered by the respondent was not a risk covered by the terms of the policy. After hearing evidence, the High Court sitting at Accra found as a fact that at the material time the respondent was not the insured ,driver’s mate. Accordingly, judgment was entered against the appellants who then appealed to this court.
The grounds of appeal argued were:
(1) The judgment cannot be supported having regard to the evidence led at the trial.
(2) The learned trial judge was wrong in refusing to attach any weight to the documents tendered by
the defendants and accepted in evidence.
(3) The learned trial judge was wrong in law in rejecting the documents sought to be tendered by the
defendants and marked Rl and R2.
(4) The costs awarded were excessive.
In his evidence before the court below, the respondent maintained that he was a farmer as well as a
fisherman and had never been employed by the insured driver as the latter’s mate. The respondent’s
younger brother confirmed this piece of evidence. The appellants on the other hand brought the insured driver to give evidence on their behalf. This witness’s evidence-in-chief was devastating and did not assist the appellants because it rather supported the respondent’s [p.340] of [1972] 2 GLR 337 story. The appellants, with leave of the court, treated him as a hostile witness and confronted him with a previous statement he had made in exhibit 3 the motor vehicle claim which the insured driver submitted to the appellants after the accident. In exhibit 3, the insured driver had stated in the column dealing with damage to third parties as follows: “One Kwadzovi Agbematu a mate on the vehicle was injured and his left leg was amputated and he is still lying in the Keta hospital.” This witness still denied he made such a statement exhibit 3 and explained that exhibit 3 was filled in for him by a man at Keta to whom he usually paid his insurance premiums in connection with the policy in question. Whether exhibit 3 was admissible in evidence is a matter I shall deal with later in this judgment.
Apart from exhibit 3, the appellants attempted to tender in evidence three other documents in which the insured driver had stated that the, respondent was his mate. The three documents were rejected by the court below and marked 1, 2 and 3. The first document was a statement made by the insured driver on 22 October 1963, about two months after the accident. The relevant portion of the statement reads: “I employed Kwadzovi Agbematu as a mate and he has been with me for two weeks prior to the accident.
After a day’s work, I do pay him ten shillings. The other mates who also receive the same amount of ten shillings each after a day’s work have been in my employment for two years.”
The second rejected document was an affidavit sworn to by the insured driver on 22 October 1963, which repeated the contents of the first document quoted previously. The third rejected document was the statement the insured driver made to the police investigating officer on 12 August 1963, the next day after the accident. In this document, it was not stated specifically that the respondent was a mate. The police statement merely mentioned that the insured driver had four other mates in the vehicle immediately before the accident.
Were these three documents rightly rejected? The answer is a big yes. Order 37, r. 62 of the Supreme
[High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), provides: [His lordship here read the provisions of the order as set out in the headnote and continued:] The rejected documents were statements made by the insured driver after the accident. It does not require argument to conclude that he was an interested person and perhaps I may quote Ashworth J. in W. & M. Wood.(Haulage), Ltd. v. Redpath [1966] 3 All E.R. 556 at p. 559, when he said “When all is said and done, however, if the driver of a lorry involved in a collision of this sort is not to be regarded as a person interested, I ask myself who is?” In the rejected documents marked 1 and 2 it was stated that the respondent was a mate—the very fact in dispute in the subsequent trial. Moreover, these two documents were made on 22 October 1963, after the appellants had intimated to the insured driver in exhibit 2 on 8 October 1963, their [p.341] of [1972] 2 GLR 337 intention to dispute any liability because the insured driver had failed to give them notice of the accident.
There is no doubt that with this declaration of intention by the appellants, the insured driver must have anticipated proceedings when he made the two statements on 22 October 1963, and in the words of Sir Raymond Evershed M.R., as he then was, in Jarman v. Lambert & Cooke (Contractors), Ltd. [1951] 2 All E.R. 255 at p. 261, C.A., proceedings were likely or were reasonably probable.
Exhibit 3 was the claim made by the insured driver and it was dated 19 October 1963. In my view, this document was caught squarely by Order 37, r. 62 and was inadmissible and should have been rejected as a statement made by a person interested at a time when proceedings were anticipated. Nevertheless, it was admitted because although objection was raised, it was based on some other ground than that the exhibit 3 was not filled in by the insured driver. The objection was overruled on the ground that the insured driver had admitted that the signature on the form was his.
What were the other documents tendered by the appellants and accepted in evidence? Exhibit 1 was the insurance policy which did not in any way help to prove that the respondent was a mate on the vehicle at the time of the accident. Exhibit 2 was a letter dated 8 October 1963, from the appellants to the insured driver complaining that the latter had failed to notify the appellants of the accident and therefore liability could not be accepted under the policy. The same letter enclosed a form to be filled in by the insured driver and invited him to call for an interview. Exhibit 4 was a letter (undated) from the insured driver to the appellants, the first paragraph of which read:
“I wish to inform you that Mr. Kwadzovi Agbematu who was injured used to be my mate; but at the time of the accident he was not acting as my mate but was engaged by one Kwadzo Aklo to take charge of his load of Agor beans.”
In the same letter he challenged the accuracy of the contents of the rejected documents marked 1 and 2. Exhibit 5 was a letter dated 11 December 1963, from the appellants addressed to the insured driver
repudiating liability. Exhibit 6 was a letter written by the respondent’s solicitor giving further particulars of the respondent’s age, marital status and children.
Yet it has been argued under the second ground of appeal that the learned trial judge was wrong in
refusing to attach any weight to these documents which were accepted in evidence. The documents just enumerated did not and could not have assisted the trial judge in any way in resolving the issue whether the respondent was a mate or a passenger. The weight to be attached to any statement admitted under Order 37 is governed by r. 65 (1) of the same Order as follows:
[p.342] of [1972] 2 GLR 337 “In estimating the weight, if any, to be attached to a statement rendered admissible as evidence by this Order regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts.”
Apart from exhibit 3, the remaining documents can be aptly described as a series of altercations between the appellants and the insured driver. Exhibit 3 as I have already said was inadmissible yet it was accepted in evidence to show that the insured driver had made inconsistent statements. The learned trial judge accordingly applied the test laid down in R. v. Harris (1927) 20 Cr.App.R. 144, C.C.A. and held that the evidence of the insured driver was nugatory. The appellants treated the insured driver as a hostile witness with leave of the court and he never admitted in cross-examination that the statement in exhibit 3 was true. He maintained throughout that he never told whoever filled in the form that the respondent was his mate at the time of the accident. Even before the court proceedings began in the original suit by the respondent against him, the insured driver had protested strongly if exhibit 4 as far back as 1963 that a clerk of the appellants had taken advantage of his illiteracy and had prepared false documents, that is, rejected documents 1 and 2, for his signature. With this type of explanation before the learned trial judge it is doubtful whether he could have concluded that the statement in exhibit 3 — that the respondent was a mate at the time of the accident-was true. It seems to me that the learned trial judge was justified in attaching no weight to the documents accepted in evidence. The appellants even knew, before the trial commenced, that the insured driver would give unfavourable evidence against them if they called him as their witness. Yet they took the plunge into an obvious danger, and the learned trial judge was constrained to remark that if he had known this, he would not have permitted the appellants to treat the insured driver as a hostile witness.
On the whole the evidence was against the appellants and the first three grounds of appeal cannot be
sustained. The appeal against the judgment was therefore dismissed.
However, the appeal against the costs succeeded because the costs awarded were obviously excessive.
The learned trial judge revealed what had motivated him when he said:
“I think this is a genuine insurance claim which the defendants ought to have settled immediately after the judgment in exhibit A [p.343] of [1972] 2 GLR 337 had been obtained, instead of adopting this uncalled for and recalcitrant attitude. They have, by their conduct, involved the plaintiff in unnecessary litigation and expense and have also deprived the plaintiff of the fruits of that judgment for over seven years. In fairness to the plaintiff, he should handsomely be compensated in costs. Accordingly, the plaintiff is awarded costs assessed at N¢1,500.00 inclusive of fee tocounsel.” It must be pointed out that the appellants were not parties to the first suit in which the respondent obtained judgment against the insured driver. In the first suit, the writ was issued on 11 December 1963, four months after the accident and judgment was obtained on 1 May 1964. The writ in the present case was issued 26 days after that judgment, on 27 May 1964, and summons for directions was heard on 29 June 1964, when the registrar was ordered to fix a convenient date for the trial. Nothing took place afterwards until 21 October 1970, a lapse of six years, when the present case was listed and the case was mentioned before the trial judge. The trial commenced on 2 February 1971, and judgment was delivered on 30 July 1971. There is no evidence that the appellants were responsible for the protraction of the proceedings for seven years. It has always been stressed that although Order 65 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), vests the court below with a discretionary power in awarding costs, yet that discretion should always be exercised judicially, that is according to reason and justice and not according to sentiment and sensibility. An appellate court should be slow in interfering when that discretion has been properly exercised. But where the costs are manifestly excessive having regard to all the circumstances of the trial, this court may interfere. See Ofori v. Ankrah, Court of Appeal, 21 March 1969, unreported; digested in (1969) C.C. 58, C.A.
The appeal against costs was therefore allowed and the costs of ¢1,500.00 reduced to ¢100.00.
JUDGMENT OF AZU CRABBE J.S.C.
I agree so fully with the judgment of Archer J.A. that I do not feel that I desire to add anything to what he has said.
JUDGMENT OF PREMPEH J.S.C.
I also agree.
DECISION
Appeal allowed as to costs.
S. E. K.
