ENTERPRISE INSURANCE CO LTD v ABBAN

The plaintiff's suit against the defendants is for the benefit of the estate of his mother, Ama Mends (deceased), for himself and for other dependents of the deceased. Ama Mends was killed in a motor accident involving motor vehicle GM 2138 which belonged to the first defendant, the insured. The said vehicle was at the time of the accident insured by the second defendant-company. The plaintiff founded his claim on negligence against the insured and joined the second defendant as insurer of the first defendant by virtue, he says, of the obligations of the second defendant to the deceased under the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958).

The present motion which is brought by the insurer, the second defendant, prays for an order to discharge it from the action on grounds that the plaintiff has no cause of action against the insurance company and could not therefore have properly joined the insurance company in this action. Counsel's argument was that neither at common law nor under statute could the plaintiff bring an action against the insurers of the first defendant, since qua insurers, their obligation to the plaintiff matures only after a third party judgment had been obtained against the insured. Mr. Sotomey, counsel for the second defendant, relied mainly on the case of Armon v. Katz [1976] 2 G.L.R. 115, C.A. to make this point. However, Mr. Awuah, counsel for the plaintiff, in reply, contended that the joinder was perfectly permissible and relied on Order 16, r. 4 of the High Court (Civil Procedure) Rules, 1954 (L.N. 140A) and on the case of Bonsu v. State Insurance Corporation [1977] 1 G.L.R. 303,C.A.

It was thought by both counsel that the Armon and Bonsu cases, which were both decided by the Court of Appeal, were in conflict and that this court was therefore at liberty to follow the better [p.442] deserving of the two. The Bonsu decision is regrettably not trouble-free because it did not confine itself to the issues raised in the appeal. English decisions like West Wake Price & Co. v. Ching [1956] 3 All E.R. 821; Post Office v. Norwich Union Fire Insurance Society [1967] 1 All E.R. 557, C.A.; Carpenter v. Ebblewhite [1939] 1 K.B. 347, C.A. and Ghanaian decisions such as Armon v. Katz (supra); Yeboah v. Krah [1974] 1 G.L.R. 247 and Northern Assurance Co. v. Fulani, High Court, Tamale, 28 April 1970, unreported; digested in (1970) C.C. 72, do not seem to fit the glove of the Bonsu decision and tend, at first glance, to