GUARDIAN ASSURANCE CO., LTD. v. ADABIE

JUDGMENT OF AMISSAH J.A.

The appellants are an insurance company. They had been brought in as third parties in an action arising out of a motor accident. The plaintiff had sued the defendant for the damage done to his car when the defendant's car through the negligent driving of the defendant himself collided with the plaintiff 's car. The defendant was insured with the appellants and brought them in to indemnify him against whatever damages or costs might be awarded against him. The trial circuit judge, Mr. Sampson, awarded the plaintiff a total of ¢2,419.23 with ¢120.00 costs. He further found that the appellants were liable to make these sums, less ¢150.00 which the defendant under the insurance policy was obliged to pay on each claim, good to the plaintiff. The appellants are aggrieved by this decision, hence this appeal. The appellants are aggrieved because they claim that their liability under the policy of insurance determined when the defendant, contrary to the terms of the policy, pleaded guilty to the criminal charge brought against him as a result of the accident. The defendant had indeed pleaded guilty. And he had done so without asking the consent of the appellants. Apparently, two reasons led the judge to his conclusion. The first was a finding of fact that he made. He had in the course of his judgment found that: "There is no portion in exhibit 3 [meaning the insurance policy] requiring that the insurance company's liability. under the policy will cease if a person insured with their company plead guilty in court." And later on the learned judge said, "No term of the conditions appears to have been contravened." This is simply incorrect. The part of the insurance policy which deals with the conditions has the following provisions:

"(1) Notice shall be given in writing to the company immediately upon the occurrence of any accident or loss or damage and in the event of any claim. Every letter claim writ of summons and/or process shall be forwarded to the company immediately on receipt by the insured. Notice shall also be given in writing to the company immediately the insured shall have knowledge of any impending prosecution inquest or fatal injury in respect of any occurrence which may give rise to a claim under this policy.

(2) No admission offer promise payment or indemnity shall be made or given by or on behalf of the insured without the written consent of the company which shall be entitled if it so desired to take over and conduct i