ESSUMANBA AND OTHERS v. NORWICH UNION FIRE INSURANCE

JUDGMENT OF OLLENNU J.

On 19 May 1967 this court struck out the defence as disclosing no reasonable defence and entered judgment for the plaintiffs. The defendants are now asking the court to review its judgment of 19 May 1967.

The plaintiffs obtained a judgment against the defendants’ insured at the High Court, Cape Coast, on 1 July 1966 in a running down action. The defendants have appealed to the Court of Appeal and an application for stay of execution is pending in that court, a similar application having been refused in the High Court, Cape Coast.

The defendants refused to satisfy the judgment debt and costs after due notice had been given them; the plaintiffs therefore instituted an action in this court under section 10 of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958).

[p.402]

It is interesting to observe here that during the pendency of the Cape Coast suit, the defendants herein engaged solicitors to defend their insured, Owusu-Ansah, when according to their defence the vehicle which was the subject-matter of the policy had been sold by the said Owusu-Ansah to a certain Obeng. This fact was well known to the present defendants, the insurance company, and I fail to understand why they did not take steps to avoid the policy of Owusu-Ansah. Instead they engaged solicitors to defend Owusu-Ansah at the High Court, Cape Coast, and the trial judge "pierced the veil covering the real ownership of the vehicle" and he concluded that Owusu-Ansah, having regard to the evidence before him, was the real owner of the vehicle in question. The judgment of the High Court, Cape Coast, which is exhibited to the plaintiffs' affidavit makes the point clear that the vehicle was the property of Owusu-Ansah.

It is this same point that the defendants who were aware of the former Cape Coast proceedings wish this court, also a High Court, to determine. I wonder whether it is proper in the circumstances to do so since the point at issue is justiciable by the two courts of equal jurisdiction and it has been decided by the High Court, Cape Coast. This court is not sitting and cannot sit as an appellate court in such circumstances.

I am of the opinion that the defendants shall not be liable to pay the judgment debt and costs if they can bring themselves within the provisions of section 10 of the Motor Vehicles (Third Party Insurance) Act, 1958. This counsel for the defendants sought to do by relying on section 10 (2) (b) of the said Act. This subse