DANIEL KAMARA v. NSIA INSURANCE CO. LTD.
2021
COURT OF APPEAL
GHANA
CORAM
- BARBARA ACKAH YENSU JA (PRESIDING)
- OBENG-MANU JNR JA
- RICHARD ADJEI-FRIMPONG JA
Areas of Law
- Civil Procedure
- Insurance Law
- Tort Law
2021
COURT OF APPEAL
GHANA
CORAM
AI Generated Summary
The Ghana Court of Appeal, per Adjei-Frimpong JA, addressed whether a tortfeasor insured (Wahab Iddris) must be joined in a subsequent action against his insurer to enforce a prior motor accident judgment. The background involved a 2016 Kasoa accident where the appellant, riding pillion, was injured; criminal proceedings followed, and a civil suit in the High Court, Winneba yielded GH2,480 in damages against Iddris after substituted service and proof. In the enforcement action, the insurer sought joinder of Iddris as a necessary party, which the trial court granted. Applying established standards for appellate review of discretion and joinder under Order 4 rule 5(2)(b), and distinguishing liability-versus-indemnity in running-down actions (Yeboah v Krah; Amponsah v Appiagyei; Amon v Raphael Tuck), the Court held that Iddriss liability was res judicata and his presence unnecessary. The insurers defenses (repudiation based on illegal use; limitation) rested on its own evidence. Concerned about injustice and reopening adjudicated issues, the Court allowed the appeal and reversed the joinder.
RICHARD ADJEI-FRIMPONG (JA):
In this appeal, we are to determine an issue not of any wide compass. Need an insured in a running down action whose liability has been determined in the injured party’s prior action, be made a defendant again in a subsequent action brought against the insurance company by the injured party to enforce the prior judgment?
The court below in this case, answers the issue in the affirmative and decides to join the insured to the subsequent suit as 2nd defendant. The plaintiff is aggrieved and appeals in this court.
In this discourse, we are mindful that the question of joinder is one of discretion, hence beyond the issue set out, we must find good grounds to interfere with the discretion exercised by the court below.
We shall come back to deal with the applicable principles, but first, the background facts of the case.
On 23rd September 2016, the insured, Wahab Iddris was riding his Jianshie motorbike from Accra to Kasoa with the appellant herein as his pillion rider. In the course of the journey, the insured was said to have lost control of the steering and as the result, veered off the road to run into a stationery towing vehicle. The appellant sustained severe injuries on the right leg and was rushed to the nearby Justab clinic, Kasoa from where she was referred to the Korle-Bu Teaching hospital for further treatment.
In the events that followed, the insured was arraigned before the District Court, Kasoa/Ofankor on charges of (a) Careless and Inconsiderate Cycling, (b) Negligently Causing Harm and (c) Failing to report accident.
Whilst he pleaded guilty on the charge of failing to report accident of which he was convicted and sentenced to a fine, he pleaded not guilty on the other two charges for which, for reasons we hardly appreciate, he was discharged.
Following the criminal trial, the appellant commenced a civil suit at the High Court Winneba, claiming essentially, damages for the insured’s negligence and the resultant injuries he suffered.
From the record before us, the writ and statement of claim were served on the insured by substituted service. When he failed to appear, an interlocutory judgment was decreed in the appellant’s favour whereupon, an entry of judgment was served on him, also by substituted service.
Following his failure once again to appear, the learned judge proceeded to put the appellant in the box to prove his case on oath. Being satisfied that the claim was made out, the learned trial judge gav