BONSU v. STATE INSURANCE CORPORATION AND ANOTHER

JUDGMENT OF FRANCOIS J.A.

Francois J.A. delivered the judgment of the court. On 27 April 1976 we allowed this appeal and now proceed to give our reasons for so doing.

The plaintiff sustained serious injuries when she was thrown into a ditch while travelling in the defendant's vehicle No. AT 3985. She sued for negligence and joined the State Insurance Corporation as the co-defendants. The defendant did not contest the action. He could not be found and the action proceeded against him after an order granting substituted service had been obtained.

In her statement of claim setting out the cause of action, the plaintiff explained why she had joined the co-defendants. She said in paragraph (10): "The plaintiff further says that the co-defendants subsequently denied ever insuring the defendant's vehicle and thereby creating a dispute between them." The plea was admitted by the co-defendants in paragraph (3) of their statement of defence to which was added the following paragraphs:

"(4) Further to paragraph (3) above the co-defendants will contend at the trial of this suit that at the material time of the alleged accident they were not the insurers of the vehicle No. AT 3985 and so will put plaintiff to strict proof of her contention that the co-defendants were the insurers of the vehicle No. AT 3985 as at the date of the incident.

(5) The co-defendants will further contend at the trial of this suit that the action brought against them by the plaintiff is misconceived and should be dismissed with costs."

It will be noted that the nature of the misconception under which the plaintiff laboured was not disclosed. But more importantly, the co-defendants admitted to a dispute between the plaintiff and themselves relating to their liability as insurers of the defendant.

Since paragraph (4) of the defence above was vague on the question whether the defendant had ever been insured by them or whether the insurance cover had lapsed "at the material time of the alleged accident," the plaintiff was compelled to apply for interrogatories to clarify the position. The answers showed that the defendant's vehicle No. AT 3985 had once been insured with the co-defendants for a period of a year in 1967, lapsing in January 1968. The co-defendants denied issuing to the defendant a certificate bearing number 90941 but admitted granting cover with a note issued on 19 February 1968 with the identical number 90941. They explained that they were "induced to issue number 90941 as con