JUDGMENT OF APALOO J.A.
The respondent was a passenger in vehicle No. WR 5374 which was involved in an accident on 9 March 1964. She sustained injuries from this accident. The vehicle was at the date of the accident driven by one Kow Sobir who was an employee and servant of one Kofi Mensah. The latter was insured by the appellant-company.
On 17 July 1964, the respondent instituted an action against the said Kow Sobir. The evidence suggests that at that date she was unaware that the vehicle belonged to Kofi Mensah who had insured it with the appellant [p.373] company. Before she became aware of this fact, she had already obtained interlocutory judgment against the said Kow Sobir. That was on 28 October 1964.
The respondent was minded of joining Kofi Mensah to the action with the obvious object of recovering any judgment she might obtain from the appellant-company who were Kofi Mensah's insurers. Accordingly, in compliance or purported compliance with the provisions of section 10 (2) (a) of the Motor Vehicles (Third Party Insurance) Act, 1958 (No. 42 of 1958), she served on the appellant-company notice of her intention to proceed against the said Kofi Mensah. This was on 19 December 1964. On 19 January 1965, Kofi Mensah was joined to the action and the evidence shows that the company prosecuted the action on his behalf and disputed his vicarious liability to the respondent. In the result, they were unsuccessful and the court found for the respondent against both Kow Sobir and the company's insured, Kofi Mensah. As the judgment-debt and costs were not met, the respondent sought by this action to recover it from the company under section 10 (1) of the Act. The company resisted the claim on the main ground that the respondent failed to comply with section 10 (2) (a) of the Act which enjoins an intending plaintiff to notify the insurer of the proposed action before or within fourteen days after the commencement of the proceedings. The company admitted, as indeed they could not deny, that a notice to commence proceeding was given them on 19 December 1964, but they contended that it was invalid inasmuch as the action was commenced on 17 July 1964 and that a notice given in December of that year could not comply with the statutory requirement.
The respondent took the position that the proceeding, in so far as it affected the appellants' insured, was commenced on 19 January 1965 and complied with the mandatory requirement of section 10 (2) (a) of Act No. 42 of
