HIGH COURT, ACCRA
DATE: 2 JUNE 1967
BEFORE: EDUSEI J.
CASES REFERRED TO
(1) Sosu v. Royal Exchange Assurance Ltd., High Court, Kumasi, 9 December 1966, unreported;
digested in (1967) C.C. 41.(2) Tamaklo v. Nuhono, High Court, Ho, 28 June 1965, unreported; digested in (1965) C.C. 196.
NATURE OF PROCEEDINGS
APPLICATION by the insurers for a review of a judgment of the High Court enforcing payment of a judgment debt.
COUNSEL
Akyea-Djamson for the defendants-applicants.
E. N. Moore for the plaintiffs-respondents.
JUDGMENT OF OLLENNU J.
On 19 May 1967 this court struck out the defence as disclosing no reasonable defence and entered judgment for the plaintiffs. The defendants are now asking the court to review its judgment of 19 May 1967.
The plaintiffs obtained a judgment against the defendants’ insured at the High Court, Cape Coast, on 1 July 1966 in a running down action. The defendants have appealed to the Court of Appeal and an application for stay of execution is pending in that court, a similar application having been refused in the High Court, Cape Coast.
The defendants refused to satisfy the judgment debt and costs after due notice had been given them; the plaintiffs therefore instituted an action in this court under section 10 of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958)
[p.402] of [1967] GLR 400
It is interesting to observe here that during the pendency of the Cape Coast suit, the defendants herein engaged solicitors to defend their insured, Owusu-Ansah, when according to their defence the vehicle which was the subject-matter of the policy had been sold by the said Owusu-Ansah to a certain Obeng.
This fact was well known to the present defendants, the insurance company, and I fail to understand why they did not take steps to avoid the policy of Owusu-Ansah. Instead they engaged solicitors to defend Owusu-Ansah at the High Court, Cape Coast, and the trial judge “pierced the veil covering the real ownership of the vehicle” and he concluded that Owusu-Ansah, having regard to the evidence before him, was the real owner of the vehicle in question. The judgment of the High Court, Cape Coast, which is exhibited to the plaintiffs’ affidavit makes the point clear that the vehicle was the property of Owusu-Ansah. It is this same point that the defendants who were aware of the former Cape Coast proceedings wish this court, also a High Court, to determine. I wonder whether it is proper in the circumstances to do so since the point at issue is justiciable by the two courts of equal jurisdiction and it has been decided by the High Court, Cape Coast. This court is not sitting and cannot sit as an appellate court in such circumstances.
I am of the opinion that the defendants shall not be liable to pay the judgment debt and costs if they can bring themselves within the provisions of section 10 of the Motor Vehicles (Third Party Insurance) Act, 1958. This counsel for the defendants sought to do by relying on section 10 (2) (b) of the said Act. This subsection reads thus “No sum shall be payable by an insurer under the provisions of subsection (1)— . . .
(b) in respect of any judgment so long as execution thereon is stayed pending an appeal.” It is admitted that an appeal against the judgment of the High Court, Cape Coast, has been lodged in the Court ofAppeal and an application for a stay of execution is also pending in the Court of Appeal, but a stay has not in fact been granted. My construction or interpretation of this subsection is that a stay must have been granted by a court of competent jurisdiction but it is not so in this case.
There is no dispute that even though the insurance company could have cancelled the policy by reason of the alleged change of ownership they had not done so at the time of the accident and the plaintiffs, having satisfied the requirements of section 10 of the 1958 Act, the defendants are liable and bound to satisfy the judgment of 1 July 1966. I am fortified in this view by the case of Sosu v. Royal Exchange Assurance Ltd., High Court, Kumasi, 9 December 1966,
[p.403] of [1967] GLR 400
unreported; digested in (1967) C.C. 41 and adopt the reasoning in that case. I am in complete agreement with the obiter dictum of Jiagge J. in Tamaklo v. Nuhono, High Court, Ho, 28 June 1965, unreported; digested in (1965) C.C. 196, when she stated, “It will be a fraud on the public to hold out, the name of [M] as owners of the vehicle and then deny this when an injured third party claims compensation for injuries suffered.” The position of the defendants is made worse by the fact that they were cognizant of the proceedings in the High Court, Cape Coast, and they did nothing but stood by and chose to fight out their case through their insured.
In view of my decision on the merits of the application I reserve for another occasion the question of the propriety or otherwise of a solicitor swearing to an affidavit in respect of a case he is personally handling.
In the result I refuse the application for review with N¢20 costs. However, I turn my attention to Order 42, r. 16 (1) (b) of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), which is in the following terms, “The Court or a Judge may, at or after the time of giving judgment or making an order, stay execution until such time as they or he shall think fit.” (The emphasis is mine.) As already stated in this ruling there is an application for stay of execution pending in the Court of Appeal and I think that there are special circumstances which render it inexpedient for the plaintiffs to enforce the judgment of this court in that if a stay is not granted here nothing precludes the plaintiffs from enforcing the judgment in this court and the application for stay of execution pending in the Court of Appeal will be rendered nugatory. In these special circumstances I invoke my powers under Order 42, r. 16 (1) (b) and order a stay of execution of the judgment of this court delivered on 19 May 1967 until such time as the application for stay of execution in the Court of Appeal shall be disposed of. This means that there is a temporary stay of execution of this court’s judgment of 19 May 1967 pending the hearing and determination of the application before the Court of Appeal. I must confess that at the beginning I entertained some doubts as to the court’s power to order a stay of execution of my judgment of 19 May 1967 without an application from the judgment debtors but after considering the equivalent provision in the English Supreme Court Practice 1967 popularly known as the “White Book” my doubts as to my powers under Order 42, r. 16 (1) (b) began to dissipate. In the 1967 White Book at p. 627 the equivalent provision is Order 47, r. 1 and it reads thus:[p.404] of [1967] GLR 400
“Where a judgment is given or an order made for the payment by any person of money, and the Court is satisfied, on an application made at the time of the judgment or order, or at any time thereafter by the judgment debtor or other party liable to execution—
(a) that there are special circumstances which render it inexpedient to enforce the judgment or order, . . .the Court may by order stay the execution of the judgment or order . . . either absolutely or for such period and subject to such conditions as the Court thinks fit.” (The emphasis is mine.) This English provision requires an application from the judgment debtor or other party liable to execution at the time of, or after, judgment or order made but Order 42, r. 16 (1) (b) does not state that an application need be made by the judgment debtor either at the time of, or after, judgment.a
I concede that the courts will seldom exercise this power without an application being made by the judgment debtor or his counsel either at the time of giving judgment or after but since the matter is before me and having regard to the wording of Order 42, r. 16 (1) (b) and the special circumstances of the case I feel convinced that I have not overstepped my powers and that it is just to make the order for stay of my judgment of 19 May 1967 until the application before the Court of Appeal is heard and determined. I order that the costs granted on 19 May 1967 as well as today’s should be paid to the plaintiffs-respondents forthwith. I think this is also fair in the circumstances.
DECISION
Order accordingly.
J.D.
