GUARDIAN ASSURANCE CO., LTD. v. AGBEMATU

JUDGMENT OF ARCHER J.A.

The respondent sustained severe injury in a motor accident on 11 August 1963, and as a result his left leg was amputated. He successfully sued the driver of the vehicle in which he was travelling at the time of the accident and was awarded ¢G4,000 damages and 80 guineas costs by the High Court, Accra, on 1 May 1964.

The driver of the said vehicle, before the accident, had taken out a third party insurance policy issued by the present appellants. After a fruitless attempt by the respondent's solicitor to convince the appellants to pay the judgment debt under the terms of the policy, the respondent took action against the appellants by virtue of the provisions of section 10 of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958), to recover the said judgment debt. The appellants defended the action and disclaimed any liability under the policy on the ground that the respondent was not a passenger but a mate employed by the insured driver and as such the injury suffered by the respondent was not a risk covered by the terms of the policy.

After hearing evidence, the High Court sitting at Accra found as a fact that at the material time the respondent was not the insured ,driver's mate. Accordingly, judgment was entered against the appellants who then appealed to this court.

The grounds of appeal argued were:

(1) The judgment cannot be supported having regard to the evidence led at the trial.

(2) The learned trial judge was wrong in refusing to attach any weight to the documents tendered by the defendants and accepted in evidence.

(3) The learned trial judge was wrong in law in rejecting the documents sought to be tendered by the defendants and marked Rl and R2.

(4) The costs awarded were excessive.

In his evidence before the court below, the respondent maintained that he was a farmer as well as a fisherman and had never been employed by the insured driver as the latter's mate. The respondent's younger brother confirmed this piece of evidence. The appellants on the other hand brought the insured driver to give evidence on their behalf. This witness's evidence-in-chief was devastating and did not assist the appellants because it rather supported the respondent's [p.340] story. The appellants, with leave of the court, treated him as a hostile witness and confronted him with a previous statement he had made in exhibit 3 the motor vehicle claim which the insured driver submitted to the appellants after the accident