ROYAL EXCHANGE ASSURANCE v. BREW [1971] 1 GLR 371

DIVISION: IN THE COURT OF APPEAL

DATE: 25 JANUARY 1971

BEFORE: APALOO, SOWAH AND ARCHER JJ.A.

CASE REFERRED TO

Staveley Iron & Chemical Co., Ltd. v. Jones [1956] A.C. 627; [1956] 2 W.L.R. 479; [1956] 1 All E.R., 403, H.L.

NATURE OF PROCEEDINGS

APPEAL from a decision of Griffiths-Randolph J. (unreported) wherein he held that the respondent was entitled to recover a judgment-debt and costs from the appellants as the insurers of the judgment-debtor’s vehicle. The facts are fully set out in the judgment of Apaloo J.A.

COUNSEL

E. K. Akyea-Djamson for the appellants.

E. M. A. Ablorh for the respondent.

JUDGMENT OF APALOO J.A.

The respondent was a passenger in vehicle No. WR 5374 which was involved in an accident on 9 March 1964. She sustained injuries from this accident. The vehicle was at the date of the accident driven by one Kow Sobir who was an employee and servant of one Kofi Mensah. The latter was insured by the appellant-company.

On 17 July 1964, the respondent instituted an action against the said Kow Sobir. The evidence suggests that at that date she was unaware that the vehicle belonged to Kofi Mensah who had insured it with the appellant

[p.373] of [1971] 1 GLR 371 company. Before she became aware of this fact, she had already obtained interlocutory judgment against the said Kow Sobir. That was on 28 October 1964.

The respondent was minded of joining Kofi Mensah to the action with the obvious object of recovering any judgment she might obtain from the appellant-company who were Kofi Mensah’s insurers. Accordingly, in compliance or purported compliance with the provisions of section 10 (2) (a) of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958), she served on the appellant-company notice of her intention to proceed against the said Kofi Mensah. This was on 19 December 1964. On 19 January 1965, Kofi Mensah was joined to the action and the evidence shows that the company prosecuted the action on his behalf and disputed his vicarious liability to the respondent. In the result, they were unsuccessful and the court found for the respondent against both Kow Sobir and the company’s insured, Kofi Mensah. As the judgment-debt and costs were not met, the respondent sought by this action to recover it from the company under section 10 (1) of the Act. The company resisted the claim on the main ground that the respondent failed to comply with section 10 (2) (a) of the Act which enjoins an intending plaintiff to notify the insurer of the proposed action before or within fourteen days after the commencement of the proceedings. The company admitted, as indeed they could not deny, that a notice to commence proceeding was given them on 19 December 1964, but they contended that it was invalid inasmuch as the action was commenced on 17 July 1964 and that a notice given in December of that year could not comply with the statutory requirement.

The respondent took the position that the proceeding, in so far as it affected the appellants’ insured, was commenced on 19 January 1965 and complied with the mandatory requirement of section 10 (2) (a) of Act No. 42 of 1958. Accordingly, the main question which the learned judge was invited to decide was: When did the proceeding against Kofi Mensah commence? If it did on 17 July 1964, then the appellants’ case was made out; if it did on 19 January 1965, then the appellants made no valid answer to the respondent’s claim. The learned trial judge, Griffiths-Randolph J. held that the proceeding against Kofi Mensah commenced on 19 January 1965 and that the respondent was therefore entitled to recover the judgment-debt and costs from the company. This conclusion is assailed by this appeal. It was submitted by Mr. Akyea-Djamson for the company that there was only one cause of action against both Kow Sobir and Kofi Mensah and that being so, the joinder of Kofi Mensah did not result in the institution of a new action against him. It was said it was only the July 1964 action brought against Kofi Sobir that was continued. Accordingly, Mr. Akyea-Djamson argued that the date by which the validity of the statutory notice should be judged was July 1964, and not January 1965. From these premises, counsel contended that inasmuch as the statutory notice was given to the appellant-company in December 1964, it sinned against the

[p.374] of [1971] 1 GLR 371 compulsory requirement of section 10 (2) (a) of the Act and was bad thereby. For this submission, he relied solidly on the English case of Staveley Iron & Chemical Co., Ltd. v. Jones [1956] 1 All E.R. 403 at p. 406, H.L.

I have read that decision with care. In that case, the House of Lords affirmed a decision of the Court of

Appeal that a crane driver was negligent and that contributory negligence raised against the then respondent was not established. The decision of the House was an evaluation of the facts found at the trial but some of the Lords took the opportunity to express themselves on the standard of care required to sustain a negligence action and also made some observations on contributory negligence. There is nothing in that judgment which sheds any light on the question at issue.

With regard to Mr. Akyea-Djamson’s contention that only one cause of action was vested in the respondent against Kow Sobir and his master Kofi Mensah, I think this is right. The former is personally liable for the tort while the latter is vicariously so. The learned judge ill-appreciated the position when he said the appellant-company were brought in because they incurred vicarious liability under section 10 (1). The appellant-company did not incur vicarious liability vis-a-vis their insured-that is Kofi Mensah. They were only under a contractual duty to indemnify him. The respondent being a stranger to the contract of insurance could not have brought this action against them but for the enabling effect of section 10 of the Act. It is therefore more accurate to say that the cause of action which the respondent had against the appellant-company was statutory.

But this accession to Mr. Akyea-Djamson’s submission does not decide the main question which was: “When were proceedings begun against Kofi Mensah who, though not an original party to the action, was subsequently joined to it?” The legislature itself must have considered that this is a matter of which reasonable minds might differ so it authoritatively provided an answer in the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N.140A), Order 16, r.11 as follows:

“Every party whose name is so added as defendant shall be served with a writ of summons or notice in manner hereinafter mentioned, or in such manner as may be prescribed by any special order, and the proceedings as against such party shall be deemed to have begun only on the service of such writ or notice.” (Emphasis supplied.) There is in fact no evidence as to when the notice of joinder was served on Kofi Mensah but the earliest date on which it could have been served on him was the date the order was made, that is, 19 January 1965. On an ordinary construction of this rule, the proceedings against Kofi Mensah commenced, at the earliest, on 19 January. That being so, the only duty cast on the respondent by section 10 (2) (a) of the Act was to notify the appellant-company of the intended proceedings against Kofi Mensah before 19 January 1965, or within two weeks of that date. That notice, ex concessis, was given on 19 December 1964, precisely a month before the proceedings against him began. I think, therefore, that the respondent discharged the obligation imposed on her by the said [p.375] of [1971] 1 GLR 371 section and is entitled to recover the judgment-debt and costs from the appellant-company. And inasmuch as that is the decision of the learned judge, I think he was right and ought to be affirmed. It would seem that the real reason why the company took the point about the lateness of the notice, is that by the date their insured was joined, interlocutory judgment had already been entered against Kow Sobir. But Kofi Mensah was entitled to have the case re-opened and admitted to raise any defence peculiar to himself or open to Kow Sobir which the latter declined or neglected to raise. Had he been refused this, there might be some question as to whether or not justice has been miscarried. But the evidence shows that Kofi Mensah was permitted to fight the suit on its merits and to deny vicarious liability for the tort of Kow Sobir.

It is this fact that led the learned judge to hold that the interlocutory judgment must have been vacated by necessary implication. In my opinion this is a reasonable view to take of the matter. I think the conclusion of the learned judge is sound and ought not to be disturbed. Accordingly, I would dismiss this appeal with costs.

JUDGMENT OF SOWAH J.A.

I agree.

JUDGMENT OF ARCHER J.A

I also agree.

DECISION

Appeal dismissed.

K. T.