ROYAL EXCHANGE ASSURANCE vs. AMANKWATIA-ANTO AND ANOTHER [1968] GLR 1001

CASES REFERRED TO

(1) R. v. Ramsgate (Inhabitants) (1827) 6 B. & C. 712; 9 Dow. & Ry K.B. 688; 4 Dow. & Ry. M.C.

470; 108 E.R. 613; sub. nom. R. v. St. Lawrence, Ramsgate (Inhabitants) 5 L.J. (o.s.) M.C. 69.

(2) Barrell v. Fordree [1932] A.C. 676; 101 L.J.K.B. 529; 96 J.P. 278; 48 T.L.R. 482; subnom. Fordree v. Barrell, 147 L.T. 206; 30 L.G.R. 271, H.L.

(3) Asunke v. Jaja [1968] G.L.R. 993.

NATURE OF PROCEEDINGS

APPLICATION by plaintiffs for a stay of execution in respect of money owed by them to the co-defendant under a judgment of the court. The facts sufficiently appear in the ruling.

COUNSEL

E. N. A. Kyemenu-Caiquo for the plaintiffs.

E. O. Appiah for the co-defendant.

JUDGMENT OF EDUSEI J.

The co-defendant on 31 August 1968, obtained judgment against the plaintiffs, an insurance company, for the sum of N¢1,625.00 inclusive of N¢250.00 costs.

The plaintiff say that they find it difficult to make payment to the co-defendant unless, according to them, the co-defendant produces a tax clearance certificate which in their view, is necessary having regard to the provisions of paragraph 81A (3) of the Income Tax Decree, 1966 (N.L.C.D.78), as inserted by paragraph 4 (1) (a) of the Income Tax (Amendment) Decree 1968 (N.L.C.D. 265). The plaintiffs therefore brought this application for a stay of execution until the said tax clearance certificate was produced by the co-defendant.

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The determination of this application calls for the construction of N.L.C.D. 78, paragraph 81A (3) as inserted by N.L.C.D. 265. The said paragraph provides as follows:

“81A. (3) No insurance company shall pay any money in respect of any claim made under any policy issued by that company unless the person to whom the money is payable under the policy produces to the company a tax clearance certificate issued in respect of himself and valid for the year of assessment in which the money is to be paid.”

It is an elementary principle of construction of enactments that the words used therein must be given their ordinary meaning, and it is only when the words so used are not clear that resort is made to the rules governing interpretation of enactments, and Decrees of the National Liberation Council in my view come under the rubric of enactments or statutes.

In the case of R. v. Ramsgate (Inhabitants) (1827) 6 B. & C. 712 at p. 715 Bayley J. said: “It is very desirable in all cases to adhere to the words of an Act of Parliament, giving to them that sense which is their natural import in the order in which they are placed.” In 1932 Lord Warrington of Clyffe approved of this principle in Barrell v. Fordree [1932] A.C. 676 at 682, H.L. when he stated, “the safer and more correct course of dealing with a question of construction is to take the words themselves and arrive if possible at their meaning without, in the first instance, reference to cases.”

I propose, therefore, in my attempt at construing N.L.C.D. 78, para. 81A (3), as inserted by paragraph 4 (1) (a) of N.L.C.D. 265, to adopt the sensible and meaningful suggestion of Lord Warrington of Clyffe.

It is to be observed that a contract of insurance is an agreement between the insurance company and the insured, and the rights and duties of the parties are contained in the policy of insurance. The rights of the co-defendant herein against the plaintiffs derive their force from a judgment of a competent court in the land. This is to say that the right of the co-defendant to get the judgment debt and costs from the plaintiffs is not made under a policy issued by the insurers but rather it is a claim that derives its validity from a judgment pronounced in his favour against the plaintiffs.

The second leg of the paragraph makes the position clear where it states “unless the person to whom the money is payable under the policy produces to the company a tax clearance certificate.” (The emphasis is mine.) The question to be asked is this: To whom is the money payable under the policy? The answer to this, is, of course, the insured. It is the insured with whom the insurance company has

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a contract and therefore he is the person to whom the money is payable under the policy. The co-defendant is enforcing his rights against the plaintiffs under a court judgment and the money payable to him by the insurance company, the plaintiffs, is made under the judgment and not under a policy.

I decide therefore that since the co-defendant is not claiming under a policy but under a judgment of the court he has obtained against the plaintiffs, the Income Tax (Amendment) Decree, 1968, has no relevance here. The co-defendant need not produce any tax clearance certificate before payment is made to him by the plaintiffs. The application for stay of execution is therefore dismissed. No order as to costs.

I have today given another ruling of a similar character but in that one a third party who had obtained judgment against the insured was held entitled to her money from the insurance company without the production of a tax clearance certificate, provided of course the requirements of section 10 of the Motor Vehicles (Third Party Insurance) Act, 1958, were complied with. The ruling is contained in the case of Asunke v. Jaja [1968] G.L.R. 993.

DECISION

Application dismissed

F. S. T.