2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
This Ghana Court of Appeal interlocutory appeal arises from a High Court, Kumasi ruling in a road traffic injury action brought by a four-year-old child (acting through a next friend) against the owner of a Mercedes-Benz bus AS 97 for negligence and vicarious liability. SIC Insurance Company Ltd initially represented the owner, then sought joinder as a defendant via review. The record revealed repeated non-service of SICs motions and the review on the first defendant, breaching audi alteram partem. The High Court dismissed the plaintiffs motion to set aside, invoking Order 1 rule 2s case-management objective. On appeal, the Court of Appeal held the weight of evidence ground inapplicable to affidavit-based interlocutory rulings; determined that non-service is jurisdictional and not curable under Order 81; and concluded SIC was not a necessary party under section 10(1) of the Motor Vehicles (Third Party Insurance) Act until judgment is obtained. The appeal was allowed, SIC was struck out, and the High Courts ruling set aside.
DOMAKYAAREH (MRS.), JA:
[1] This interlocutory appeal is against the Ruling of the High Court, Kumasi dated 30th May, 2019. The case is a running down case in which the Plaintiff (4 years old) instituted an action through his next friend on 4th July, 2017 against the Defendant wherein he claimed the following reliefs from the Defendant as endorsed on the Writ of Summons:
General damages for serious injuries sustained by the Plaintiff in a motor accident involving vehicle bearing Registration Number AS 97 – 14, Mercedes Benz Bus the property of the Defendant which accident was caused by the negligent, careless and reckless driving by the Defendant’s driver who was at the material time of the accident, the driver, agent, servant, employee of the Defendant and was in the cause of activities and or duties as such driver, agent, servant, employee of the Defendant and for which accident, the Defendant is vicariously liable
AND
Such further Order(s) as this Honourable Court might judicially make.
[2] The Defendant duly entered appearance and filed a Statement of Defence on 8th September, 2017 through the Legal Affairs Department of SIC Insurance Company Ltd.(SIC). On 6th December, 2017, SIC filed a Motion on Notice for withdrawal of representation for the Defendant supported by an Affidavit. The Plaintiff opposed this Motion to withdraw the representation through his Affidavit in Opposition filed on 14th December, 2017. The Record does not indicate the outcome of this Motion. However, on 19th December, 2017, the SIC filed a Motion on Notice for Joinder to the suit as a defendant. The Plaintiff opposed this Motion for Joinder through his Affidavit in Opposition filed on 15th January, 2018. This Motion for Joinder was refused on 15th March, 2018 on the grounds that the liability of the Defendant is limited to issues raised by the Claim and that nowhere in the Statement of Claim is there an apportionment of liability to the Applicant (SIC). The trial court further held that the contention of the Applicant deposed to in the Plaintiff’s Affidavit in Opposition can be adjudicated in Third Party Proceedings. See page 71 of the Record of Appeal.
[3] On 23rd March, 2018, the SIC filed a Motion on Notice for Review of the Ruling given on 15th March, 2018 accompanied by a Supporting Affidavit. The gravamen of the Affidavit in Support of the Motion for Review was that on the day the Motion for Joinder was to be moved, counsel for the Applicant was late to court b