DIAFO v. STATE INSURANCE CORPORATION

JUDGMENT OF CHARLES CRABBE J.

The plaintiff issued a writ on or about 1 March 1968 against a Mr. Alphonse Bullard, of Adisadel College, Cape Coast. This he did as the sole administrator of the estate of one Thomas Tawiah. By that writ he claimed, for himself and on behalf of the estate and other dependants of the late Thomas Tawiah, damages for the injuries caused to, and the subsequent death of, the said Thomas Tawiah by reason of the negligent driving of Mr. Alphonse Bullard (Bulliard).

In accordance with the provisions of paragraph (a) of subsection (2) of section 10 of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958), notice of the action was given to the defendant corporation. On 27 July 1971, the High Court of Justice gave judgment for the plaintiff against Mr. Alphonse Bullard in the sum of ¢6,400.00 inclusive of costs of ¢400.00. The plaintiff then gave notice, on 28 July 1971, to the defendant corporation of the judgment obtained against Mr. Alphonse Bullard, an insured of the said corporation. This judgment has not been satisfied. Thus on 22 May 1972 the plaintiff issued a writ against the defendants claiming the judgment debt and costs amounting to ¢6,400.00.

The defendants entered appearance to the writ issued on 22 May 1972. The plaintiff then applied under Order 14, rr. 1 and 2 of the Supreme [High] Court (Civil Procedure) Rules, 1954 (L.N. 140A), for liberty to sign judgment against the defendants. In the words of the plaintiff’s affidavit "they have no good defence to the action on merits." The defendants, through their lawful representative at Takoradi, deposed to an affidavit that on the receipt of the notice of the action between the plaintiff and Alphonse Bullard, the defendants had to wait on their insured, Alphonse Bullard, for the writ but the defendants never received that writ. It is contended that the judgment obtained against Alphonse Bullard was invalid and therefore voidable for the reasons that:

"(1) The writ of summons numbered 16/68 issued on 1 March 1968 ceased to be in force on 28 February 1969—and therefore at the time judgment was given no such action was pending in court.

[p.373]

(2) Since the defendant was out of the country at the time of the issue and service of the writ, service of it on the defendant should have been effected out of jurisdiction and the substituted service effected by the plaintiff was therefore bad in law.

(3) If the true facts regarding the whereabouts of the defen