NEW INDIA ASSURANCE CO., LTD. v. MANANG [1968] GLR 538

DIVISION: COURT OF APPEAL

DATE: 25 JUNE 1968

BEFORE: AKUFO-ADDO C.J., AZU CRABBE AND LASSEY JJ.A.

NATURE OF PROCEEDINGS

APPLICATION for an extension of time within which to fulfil conditions of appeal. The facts are fully stated in the ruling.

COUNSEL

E. K. Akyea-Djamson for the applicant company.

Joe Appiah for the respondent.

JUDGMENT OF AKUFO-ADDO C.J.

Akufo-Addo C.J. delivered the ruling of the court. This is an application by the defendants for an extension of time in which to fulfil conditions of appeal.

The plaintiff herein, a girl, then fourteen years old, brought an action in August 1963 against one John Lagos, the owner of a motor vehicle, for damages for the loss of a leg suffered by her in a motor accident in which the vehicle of the said John Lagos was involved.

[p.539] of [1968] GLR 538

On 31 October 1963 the High Court, Kumasi, where the action was brought, gave judgment in favour of the infant-plaintiff and awarded her £G2,537 15s. damages and costs.

The said John Lagos had insured his vehicle with the New India Assurance Co., Ltd. The plaintiff’s solicitor by a letter on 1 November 1963, requested the New India Assurance Co., Ltd. to satisfy the said judgment in pursuance of the provisions of section 10 (1) of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958). The insurance company by a letter dated 12 November 1963, refused to satisfy the said judgment on the ground that they hoped to obtain a declaration against the assured, the said John Lagos, for the annulment of the policy in pursuance of the provisions of section 10 (3) of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958). The plaintiff thereupon issued out an originating summons for the determination of all questions between her and the New India Assurance Co., Ltd. with respect to the insurance company’s liability to satisfy the judgment debt and costs and, in particular for an order directing the insurance company to make payment to her of the said judgment debt and costs. On 29 March 1965, the High Court, Kumasi, (presided over by Okyere Darko J.) which heard the summons ordered the insurance company to pay the judgment debt and costs and awarded 30 guineas costs. According to the defendants’ counsel he immediately filed an appeal against the said order. The conditions of appeal have since not been fulfilled. About two weeks ago the embryonic appeal was listed to come before this court for an order to strike it out. The defendants’ counsel promptly filed this application, and the affidavit in support thereof was sworn to by Mr. Edward Kingsley Akyea-Djamson who describes himself as a partner in a firm of lawyers in Accra and who is counsel appearing on this application. The initial fact to which Mr. Akyea-Djamson deposed was that until he saw the case listed to be struck out he did not know that the conditions of appeal had not been fulfilled. He does not even say that he had any reasons to believe that they had been fulfilled. He then rummaged through his files, and it was then that he discovered a number of mistakes committed by his firm through what he describes as “inadvertence.” The first mistake was that after the appeal had been filed his firm wrote to Mr. Sotomey, a lawyer in Kumasi, instructing him to appear for them at the settling of the record at the registry of the High Court in Kumasi. The typist who typed the letter was using a file containing papers relating to other cases in the Kumasi High Court which the firm was handling, and the typist placed at the head of the letter the [p.540] of [1968] GLR 538 title of a wrong case. That case was Kwadjo Addo v. John Lagos. Subsequent correspondence between the defendants’ counsel and Mr. Sotomey related to this case and finally Mr. Sotomey wrote to the defendants’ counsel on 27 May 1966, concerning the conditions of appeal in that case. This case turned out to be one from which the firm was withdrawing its professional representation, and in August 1966, the firm filed a notice of withdrawal. Meanwhile, as early as 28 September 1965, the defendants’ counsel wrote two letters respectively to the registrar, High Court, Kumasi, and Mr. Joe Appiah who is counsel for the infant-plaintiff, Esi Manang, concerning this appeal, and these letters bore the correct title of the case, i.e. Esi Manang v. New India Assurance Co., Ltd. These two letters constituted the last action that the defendants’ counsel took in the chain of events described in Mr. Akyea-Djamson’s affidavit. Whatever confusion that might have arisen by reason of the typist’s mistake in referring to the wrong case in the letter of instructions to Mr. Sotomey appears to us to have been completely resolved as early as August 1966, when the defendants’ counsel filed the notice of withdrawal from that case, i.e. Kwadjo Addo v. John Lagos, and from that date, therefore, counsel’s office records must clearly have shown that they had no such case pending to engage their attention. And the records could not have failed to show that there was a case entitled Esi Manang v. New India Assurance Co., Ltd. in respect of which they had written letters on 28 September 1965 and about which nothing had been done since. There appears to us to be no reason whatever why counsel should have stopped with the two letters of 28 September 1965 and failure on their part to pursue the matter from that date with the requisite diligence is to us nothing short of plain negligence on their part.

We are being invited to exercise our discretion to grant an extension of time not only because of the typist’s initial mistake but also because a very important principle of law is involved in the case which requires to be pronounced upon. This court of course welcomes every opportunity offered it to pronounce upon important principles of law, but the opportunity comes only when those who are responsible for bringing to the court matters involving important principles of law act with the diligence and promptness that the rules of court require. We do appreciate the attraction that is paraded before us to engage ourselves in delving into the intricacies of the law, but we cannot yield to that attraction without committing what in our view would be a grave injustice.

The plaintiff, a young girl fourteen years old at the time of the accident, has suffered the signal misfortune of losing a leg so early in her life. For three whole years and more she has been lulled into a

[p.541] of [1968] GLR 538 feeling of consolation that she is at least free from the hazards of further litigation, and she no doubt will be making the best of efforts to accommodate herself to a somewhat precarious life that lies ahead of her. No amount of professional concern for a definitive pronouncement on any principle of law, however important, can justify us in disturbing her peace of mind. We find nothing excusable in the conduct of defendants’ counsel that should influence us to exercise our discretion in his favour. Counsel deliberately slept on his client’s rights and he cannot complain, upon arousing himself from his sleep, to find that those rights have meanwhile disappeared.

The application is refused with costs of N¢50.00.

DECISION

Application dismissed with costs.

L. F. A.