JUDGMENT OF ARCHER J.A.
Archer J.A. delivered the judgment of the court. The facts in this appeal are briefly as follows: The appellant who was the owner of a Volkswagen motor car registered as NG 619 entered into a contract of insurance with the respondents, Royal Exchange Assurance, whereby a policy No. PM 28974/GH dated 22 February 1961 was issued to cover the appellant's vehicle for a period of twelve months commencing from 26 October 1960 and ending on 25 October 1961. The value of the car as stated in the policy was £G560.
On 31 October 1960, that is, five days after the effective date of the policy, the appellant's car was involved in an accident and the car was damaged. On the same day, the appellant gave notice to R. T. Briscoe (Ghana) Ltd., Tamale, as agents for the respondents, and later on 2 November 1960, R. T. Briscoe (Ghana) Ltd. towed the motor vehicle to their workshop at Tamale. Perhaps, it must be pointed out at this stage that apart from being agents for the respondents in purely insurance matters and business, R. T. Briscoe (Ghana) Ltd. also independently carried on their own business as repairers. This dual role of R. T. Briscoe (Ghana) Ltd. as insurers and repairers must be emphasized for a proper appreciation of the facts.
[p.342]
On 4 April 1961 when the motor vehicle had not been returned to him the appellant issued a specially endorsed writ of summons against the respondents claiming "damages for the respondents' breach of contract and/or negligence in and around the performance of the respondents' obligation under and in virtue of a contract of insurance." No specified amount was endorsed on the writ although a form of specially endorsed writ was issued. However, the writ was accompanied by a statement of claim paragraphs (1) to (6) of which were admitted by the respondents but paragraphs (7) and (8) of which were denied.
Paragraphs (7) and (8) read:
“(7) By the joint effect of section 1 of the said contract of insurance and condition four of the conditions in the said contract of insurance contained the defendants are under an obligation to repair, reinstate or replace the said motor car No. NG 619 or pay in cash the value of the same and it is an implied term of the said contract of insurance that the said obligation to repair, reinstate or replace the said motor car or its value to pay and on the part of the defendants to be performed will be performed within a reasonable time.
(8) The defendants have up to now faile
