Daniel Kamara -vrs- Nsia Insurance Co.Ltd. [2021] GHACA 4 (14 October 2021)

IN THE SUPERIOR COURT OF JUDICATURE IN THE COURT OF APPEAL ACCRA CORAM: BARBARA ACKAH YENSU JA (PRESIDING) OBENG-MANU JNR JA RICHARD ADJEI-FRIMPONG JA SUIT NO. H1/52/2021 DATE: 14TH OCTOBER, 2021 DANIEL KAMARA ..... ..... ..... PLAINTIFF/APPELLANT VRS NSIA INSURANCE CO. LTD. ..... ..... DEFENDANT/RESPONDENT J U D G M E N T RICHARD ADJEI-FRIMPONG (JA): In this appeal, we are to determine an issue not of any wide compass. Need an insured in a running down action whose liability has been determined in the injured party’s prior action, be made a defendant again in a subsequent action brought against the insurance company by the injured party to enforce the prior judgment? The court below in this case, answers the issue in the affirmative and decides to join the insured to the subsequent suit as 2nd defendant. The plaintiff is aggrieved and appeals in this court. In this discourse, we are mindful that the question of joinder is one of discretion, hence beyond the issue set out, we must find good grounds to interfere with the discretion exercised by the court below. We shall come back to deal with the applicable principles, but first, the background facts of the case. On 23rd September 2016, the insured, Wahab Iddris was riding his Jianshie motorbike from Accra to Kasoa with the appellant herein as his pillion rider. In the course of the journey, the insured was said to have lost control of the steering and as the result, veered off the road to run into a stationery towing vehicle. The appellant sustained severe injuries on the right leg and was rushed to the nearby Justab clinic, Kasoa from where she was referred to the Korle-Bu Teaching hospital for further treatment. In the events that followed, the insured was arraigned before the District Court, Kasoa/Ofankor on charges of (a) Careless and Inconsiderate Cycling, (b) Negligently Causing Harm and (c) Failing to report accident. Whilst he pleaded guilty on the charge of failing to report accident of which he was convicted and sentenced to a fine, he pleaded not guilty on the other two charges for which, for reasons we hardly appreciate, he was discharged. Following the criminal trial, the appellant commenced a civil suit at the High Court Winneba, claiming essentially, damages for the insured’s negligence and the resultant injuries he suffered. From the record before us, the writ and statement of claim were served on the insured by substituted service. When he failed to appear, an interlocutory judgment was decreed in the appellant’s favour whereupon, an entry of judgment was served on him, also by substituted service. Following his failure once again to appear, the learned judge proceeded to put the appellant in the box to prove his case on oath. Being satisfied that the claim was made out, the learned trial judge gave judgment for the sum amounting to GHC 32,480.00 in the appellant’s favour. Subsequently, on the basis that the respondent herein was on record to be the insurer of the insured, the appellant commenced the instant action at the court below to enforce the judgment obtained. His simply couched singular relief was as follows: “Recovery of the sum of Thirty—two thousand four hundred and eighty Ghana Cedis (GH¢ 32,480.00) being the compensation awarded by the High Court, Winneba in my favour and against Wahab Iddrisu in respect of injuries I sustained in the accident involving Motorbike No. M-15GR- 4104 being driven by the said Wahab Iddrisu insured by the defendant herein.” On being served with the writ, the respondent applied for an order to join the insured to the suit as 2nd defendant, in its own words, “to ensure that all the matters in dispute in the proceedings are effectively and completely determined and adjudicated upon.” The application was strongly resisted by the appellant. However, the learned judge of the court below felt persuaded to grant the order. She reasoned briefly as follows: “After listening to both Counsel for the Applicant and the Respondent and reading the affidavits in support of the motion and in opposition to the motion and the attached exhibits, it is my considered opinion that from the pleadings filed so far, the said Iddrisu A. Wahab, that the applicants are seeking to join to the suit as 2nd defendant is a necessary party whose presence in the suit would help the Court in determining the dispute effectively.” Unhappy with the above decision, the appellant filed the instant appeal in this court on the grounds set out in the notice of appeal as follows: (a) That the ruling is against the weight of evidence. (b) The Honourable Court erred in law and on the facts when it held that the tortfeasor Iddrisu Wahab is a necessary party whose presence in the suit would help it in the determination of the issues in the suit. At the outset, we appreciate that the exercise of the discretion whether to grant or refuse the order of joinder was vested in the court below, not in ours. The quest rests on the basis, if any, upon which we as an appellate court can interfere with the exercise of the discretion by the court below. Again, the authorities are settled that since the discretion belongs to the court below, we are not merely to substitute our own exercise of discretion for that of the court below, regardless of our conviction about it. See CHARLES OSERON & CO. VRS JOHNSON (1942) AC 130 at 138. The rationale of the principle as we understand is that, in determining an appeal against the exercise of discretion, the appellate court is to proceed on the presumption that the decision appealed is right and that the court below had exercised the discretion properly. The appellate court can only interfere if it could be shown that the discretion had been exercised wrongly, in that, no weight or sufficient weight was given to relevant considerations, or where the discretion is wrong in law or will result in injustice being done. The interference may also be for the reason that the court below had acted under a mistake of law, or in disregard of material principles, or under misapprehension of the facts, or that it took into account irrelevant considerations. The principles are well settled by a considerable body of case law. In SAPPOR WIGATAP LTD (2007-2008)1 SCGLR 676 at 679, Georgina Wood JSC (as she then was) delivered herself thus: “The well-known and time-honoured legal principle is that an appeal against a decision based on the exercise of a court’s discretionary jurisdiction would succeed in only those clearly exceptional cases where, in sum, the judge failed to act judicially. The principles clearly enunciated in the two Court of Appeal decisions in Nkrumah v Serwah (1984—86) GLR 190 and Ballmoos v Mensah (1984—86)1 GLR 725, are that an appellate court would interfere with the exercise of discretion where the court below applied wrong principles, or the conclusion reached would work manifest injustice or even that the discretion was exercised on wrong or inadequate material…” Applying the same principle in OWUSU VRS OWUSU-ANSAH & ANOR (2007— 2008)2 SCGLR 870 at 877, Sophia Adinyira JSC cites the House of Lords’ decision in BLUNT VRS BLUNT (1947) AC 817 at 518 for the following passage: “An appeal against the exercise of the court’s discretion may succeed on the ground that the discretion was exercised on wrong or inadequate materials if it can be shown that the court acted under a misapprehension of fact in that it either gave weight to irrelevant or unproved matters or omitted to take relevant matters into account.” Guided by the foregoing principles, we attend to the two grounds of appeal which we find cause to resolve together. Ground 1 is the omnibus ground of appeal and by our understanding, such ground of appeal imputes the presence of mixed law and fact and invites us as an appellate court, to examine the record and where relevant, resolve issues anew. In this sense, ground 2 which alleges error of law and fact on the part of the trial judge for her conclusion that the insured was a necessary party, is embedded in ground 1. The two can therefore go together. Counsel for the appellants argues the two grounds separately. The substance of his argument however, is that the trial judge misdirected herself on her holding that the insured was a necessary party in the action. On authority, he explains that being a running down claim, the appellant was required by law, first to proceed against the driver and/or the owner of the vehicle and on obtaining judgment proceed against the insurer who ought to indemnify the insured. The issues in the two actions were separate and independent. The issue in the action against the insured was one of liability for negligence and quantification of damages and that against the insurer was to determine whether the insurer was liable to indemnify the insured for the damages already determined. Thus, as the appellant had already obtained judgment at the High Court, Winneba as required by law, the instant action was only to determine the question of indemnity which did not require the presence of the insured in the matter. For Counsel, the decision of the trial court becomes even more incomprehensible if it was considered that as between the appellant and the insured, the question of liability was res judicata and the plaintiff had thereby ceased to have any cause of action against him. The authorities relied upon include YEBOAH VRS KRAH (1968) GLR 1137—1145; NORTHERN ASSURANCE COMPANY VRS FULANI & ANOR, High Court, Tamale 28th April 1970; digested in (1970) C. C 72; E. D KOM in Joinder of Insurance Companies in Running Down Actions (1977) Vol. IX No.2 RGL 154—166. Per contra, Counsel for the respondent thinks the trial judge was right in her decision that the insured was a necessary party. According to Counsel, it was shown in the application for joinder that there were conflicting reports about the circumstances of the accident and that the only way the court would unravel the conflicting reports was for the insured to be joined in the action. Counsel explains that the police accident report showed that the appellant was a pillion rider. if that was established, then the motor bike was in illegal commercial use at the time of the accident, a ground for the respondent to repudiate liability. (REDMOND V SMITH, (1844) 7 MAN & G 457 at page 474; JAMES YATCHS VRS THAMES & MERSEY MARINE INSURANCE CO. LTD and OTHERS (1977)1 LLOYD’S REP. 206 at page 212 cited.) Again, the respondent was not aware of the earlier action and the circumstances under which that judgement was obtained hence, it was in the interest of justice that the insured was joined to the suit. It is contended that a defendant in an action has the right to put up a defence to the action and also have any party joined to the suit who in his estimation will help matters to be effectively and completely determined the interest of justice being the basis of the test for joinder. TSATSU TSIKATA VRS THE REPUBLIC (2007-2008)2 SCGLR 702 cited. To begin with, Order 4 rule 5 subrule 2(b) which governed the application before the trial court prescribes: “(2) At any stage of proceedings the Court may on such terms as it thinks just either of its own motion or on application (b) order any person who ought to have been joined as a party or whose presence before the Court is necessary to ensure that all matters in dispute in the proceedings are effectively and completely determined and adjudicated upon to be added as a party” The rule appears to be in two parts either of which may ground an order for joinder of a party to the suit; either that the party sought to be joined ought to have been joined as a party at the commencement of the suit, or alternatively, his presence before the court is necessary to ensure that all matters in dispute in the proceedings are effectively and completely determined and adjudicated upon. As we can see, though the latter ground appears to stand on its own, it may invariably merge in the former. For, any party who ought to have been joined to the suit in the first place must necessarily be one whose presence before the court is necessary to ensure effective and complete determination and adjudication of the matters in dispute in the proceedings. Little wonder then that, this “necessary party” approach the essence of which is to uphold the necessity of having before the court, the proper parties, necessary to determine the point at issue, has been applied in a tall list of judicial decisions both local and external. In APENTENG VRS BANK FOR WEST AFRICAN (1961) GLR 81 which has since been followed in ZAKARI PAN AMERICAN AIRWAYS INK (1982-83)2 GLR 975, Ollenu J espoused: “In an application for joinder, the most important question which the court has to answer is: would the joinder of the party enable the court effectually and completely to adjudicate upon and settle all questions involved in the cause? If it would, the application should be granted, if not, the application should be refused.” Similarly, Abban J. A (as he then was) in MONTERO VRS REDCO (1984—86)1 GLR 710 explained the rule under the former Order 16 rule 11 of the Procedure Rules (LN 140A) at page 717 thus: “It was submitted by learned Counsel for plaintiffs that the order made by the learned judge joining Bank for Housing and Construction as a defendant was wrong. Counsel contended that Order 16 r 11 of the High Court (Civil Procedure) Rules, 1954 (LN 140A) was inapplicable in the circumstances of this case…Order 16 r 11 gives the judge discretion in any given case to join any person whose presence before the court is necessary in order to enable the court dispose of effectually and completely, all matters in controversy in the cause or matter.” See also AGYEI VRS APRAKU (1977)2 GLR 10; AEGIS SHIPPING CO. LTD VRS VOLTA LINES (1973)1 GLR 438; BONSU VRS BONSU (1971)2 GLR 242. Elsewhere, in AMON VRS RAPHAEL TUCK & SONS LTD (1956)1 ALL ER 273 at 279 Devlin observed: “Accordingly, this case, in my view, really turns on the true construction of the rule, and in particular, the meaning of the words “…whose presence before the court may be necessary in order to enable the court effectually and completely to adjudicate upon and settle all the questions involved in the cause or matter…” The beginning and end of the matter is that the court has jurisdiction to join a person whose presence is necessary for the prescribed purpose and has no jurisdiction under the rule to join a person whose presence is not necessary for that purpose.” See also, VANDERVELL TRUSTEES LTD VRS WHITE (1970)3 ALL ER 16 In granting the application for joinder, the trial court gave the reason applying the test in the rule. She thought that the insured was “a necessary party whose presence in the suit would help the court in determining the dispute effectively.” It ought to be stated and emphasized that reference to “all matters in dispute in the proceedings” as contained in rule, means all matters in dispute in the proceedings between the parties, in this instance the appellant and the respondent. It cannot be stretched to cover a matter in dispute between the appellant and the insured which was determined anyway by the High Court, Winneba, nor any matter in dispute that may exist between the respondent as the insurer and the insured. Therefore, when the trial judge stated that the insured was a necessary party whose presence in the suit would help the court in determining the dispute effectively, the suit was, as constituted between the appellant and the respondent and the dispute was, as pertained between the two of them. In AMON VRS RAPHAEL TUCK & SONS (supra) Devlin J states the position at page 279 of the report in the following terms: “It is not, I think, disputed that “the cause or matter “is the action as it stands between the existing parties. If it were otherwise, then anybody who showed a cause of action against either a plaintiff or defendant could, of course, say that the question involved in his cause of action could not be settled unless he was made a party.” The above should be the reason why the question must depend upon the issue(s) drawn between the parties on the basis of the claim and the underlying pleadings. In the words of OLLENU J in the APENTENG case: “To arrive at the correct answer…where the application is by the defendant, and not the plaintiff, the court must first of all look at the plaintiff’s writ of summons, his pleadings and the reliefs he seeks; if the plaintiff makes no claim against either directly or inferentially against the party sought to be joined, or if the claim could succeed without the party sought to be joined being made a party, the application must be refused.” That said, what was the dispute between the existing parties, the appellant and the respondent before the joinder? The appellant’s case distilled from his 13--paragraph statement of claim was that he had obtained judgment in damages in the running down action against the insured. Prior to the commencement of the earlier action, he had, through his solicitor, served the requisite statutory notice on the respondent. He was in the trial court to enforce the judgment against the insures of the tortfeasor. The defence filed by the respondent was essentially that he was entitled to repudiate liability. It also pleaded time bar. The relevant averments are reproduced as follows: “4. Save that the incident occurred on 23rd September 2016, Defendant says the facts of the incident as narrated by the plaintiff in paragraph 3 of the statement of claim, are totally different from the facts presented by him at Justab Hospital, where he received treatment as per the medical report. 5. Defendant says in further response to paragraph 3 of plaintiff’s statement of claim that whereas per the medical report dated 23/11/2016, plaintiff was knocked down by the insured motorbike at Kasoa Amanfrom, he alleges in the statement of claim that he was traveling as a pillion rider on the motorbike, which veered off the road and run into a stationery towing vehicle. 6. Defendant says further that in any case, going with the averment in paragraph 3 of the plaintiff’s statement of claim, the insurance does not cover the illegal activity of operating a motorbike commercially or as Okada rider. 7. Defendant admits paragraphs 5 and 6 of the plaintiff’s statement of claim and says it no longer admits responsibility towards plaintiff as to claim liability, as it is protected from same, taking into account, the illegal commercial use of the motorbike. 9. Defendant further says that it is not liable to pay the plaintiff the total sum awarded by the High Court, Winneba against the insured, Iddrisu A. Wahab. 10. Defendant says in any event, this suit cannot be brought against it to claim damages in respect of personal injuries after the expiration of three years from the date on which the cause of action accrued. 11. Defendant avers that the accident occurred as far back as 2016, four years ago. Thus, plaintiff is barred from instituting this action specifically against the Defendant as same is caught by the Limitations Act, 1972.” From the above, we appraise that two key issues were germane to be determined by the trial court: (i) whether the respondent was not liable to pay the sum awarded by the High Court Winneba by reason that the policy does not cover the alleged illegal use of the motorbike and (ii) whether the appellant was time-barred from instituting the action against the respondent. The pleading about the appellant allegedly giving conflicting statements about the occurrence of the accident is completely out of the question of joinder. It was clearly a matter to be put to the appellant in course of the trial. Nothing of it requires the presence of the insured in court. Now to the two key issues, did it require the presence of the insured in the matter for the trial court to determine them completely and effectually? In answering the question, the dichotomy of the two shades of liability in a running down claim ought to be borne in mind. Learned Counsel for the appellant has referred us to a passage from the article of the Learned E. D Kom of blessed memory; “Joinder of Insurance Companies in Running Down Action” published in 1977 Vol. IX No.2 Review of Ghana Law 154—166 where the learned Author wrote: “In running down actions, the issue between the plaintiff and the defendant is one of liability for negligence and quantification of damages and that between the plaintiff and the insurers is whether the latter are liable to indemnify their insure for the damages and costs awarded against him.” The above statement no doubt represents the true position of the law. We are clear in our minds that it is in line with that position that the law would require the injured party to first proceed against the tortfeasor and obtain judgment before seeking its enforcement against the insurer in indemnity as the appellant did in the instant case. In AMPONSAH VRS APPIAGYEI (1982-83)1 GLR 96 at 105 Amua—Sekyi J held: “Reading our law reports, however, I find that the practice has been to sue the tortfeasor first, and then, having got judgment, sue the insurer, if necessary, for the purpose of recovering the judgment debt and costs. In each of the following cases, the insurance company was sued only after judgment had been obtained against the insured.” IN YEBOAH VRS KRAH (1968) GLR 1137 at 1143 this court, speaking through Amissah J. A took a similar position thus: “…The injured party’s right to be compensated for his injury is against the negligent person and is wholly independent of the insurer. Of course, legislation in the nature of the Third Party Act 1958, may give the injured party a more or less direct recourse against the insurer. But that is on the basis that the loss incurred by the negligent person will ultimately be borne by the insurer. And even there, judgment has to be obtained first against the negligent person.” See also ARMON VRA KATZ (1976)2 GLR 115. To our minds, a key effect of the legal requirement of the injured obtaining judgment against the tortfeasor before proceeding against the insurer is that, by the time an insured would commence the suit against the insurer, the issue of liability of the tortfeasor, subject to his right of appeal, would stand determined and shall generally cease to arise in the later action. What would stand to be determined in the later action would be the question of indemnity involving the insurer for the damages and costs awarded in the earlier action. In such scenario, the tortfeasor could not be said to be someone who, in the words of the rule, ought to have been joined as party and scarcely would he be a necessary party in the later action. To join him later in the action must be on account of good reason. We on this note prescribe the need for a good reason for good policy consideration which is that, if the avenue is not restricted, and the tortfeasor is easily let in, there is the potential danger of re-opening matters already determined in the earlier suit. This could result in serious injustice to plaintiffs in such actions. This consideration ought to inform trial courts in the exercise of their discretion in such matters. Closely linked to the above is the argument which we consider sound and acceptable that, by the judgment of the High Court, Winneba, the issue of the insured’s liability was res judicata. There is hardly any dispute about the binding effect of that judgment on the tortfeasor and we think, subject to his right of appeal, if still available to him, there should be extreme caution in deciding to join him to the action. When the trial judge decided that the insured was a necessary party whose presence in the matter would assist her determine the matter in dispute before her, she did not explain how. Certainly, she was not bound to explain anything. Nonetheless, we are of the view, from what we have said so far that, there were critical legal and factual considerations which ought to have weighed on her in making the decision and that had she given due consideration to those matters, her decision would have been different. These, we believe afford good grounds for us to interfere with the discretion exercised. Additionally, on our examination of the pleadings filed in the case and the issues arising from them, we are not convinced that they required the presence of the insured in the matter to resolve. The appellants’ entire claim was founded on the judgment obtained which was binding and valid for all purposes until it was set aside. The defence pleaded was clear and cut out and the materials required to make it up were clearly in the respondent’s bosom. Plainly put, whilst the evidence to demonstrate why the policy should not cover the accident in question rests with the respondent, nothing about the issue of time bar involved the insured to warrant bringing him before the court as a party. We afraid the joinder was going to occasion needless delay, costs and inconvenience and coupled with the potential dangers of injustice to the appellant, we think there is cause for us to disturb the order. Before we conclude, there is one legal point to address. Learned Counsel for the respondent urged upon us, the decision in TSATSU TSIKATA VRS THE REPUBLIC (supra) on the question of the test for joinder which according to the decision should be driven by the justice of the case. The decision in TSIKATA and others similarly decided, espouse what can be considered as a wide and liberal approach to the test for joinder. In his speech, Atuguba JSC, having examined other decisions on the matter delivered himself at page 714 -715 thus: “From the foregoing, it is clear that the law has reached the stage where, statute apart, a court has inherent jurisdiction to join a person to proceedings before it in which such a person is interested as a party; or without such joinder, order the proceedings to be served on him to enable him to be heard on the matter, as such interested party or to be served on a person as an amicus curiae whether such person be interested in the subject matter or not; and provided his presence can assist the court to resolve the issue at hand, such person can be invited by the court to be heard on the matter. The common test in all these situations, is the interest of justice.” Whilst we are mindful of the test in the decision and its binding effect on us, we nonetheless think that the peculiar nature of the case before us, in particular, its nuances of estoppel per rem judicatam and the potential danger of the joinder working injustice against the appellant as demonstrated ante, the authority is with respect, rendered inapplicable and in no way stands to advance the case of the respondent. In the final analysis, we are convinced both grounds of appeal succeed, we uphold the appeal, and reverse the order of the trial court. SGD ................................... JUSTICE RICHARD ADJEI-FRIMPONG (JUSTICE OF THE COURT OF APPEAL) SGD I AGREE ............................ JUSTICE BARBARA ACKAH YENSU (JUSTICE OF THE COURT OF APPEAL) SGD I ALSO AGREE ............................ JUSTICE OBENG-MANU JNR (JUSTICE OF THE COURT OF APPEAL) COUNSEL: K. OPOKU AGYEMAN FOR PLAINTIFF/APPELLANT OSEI TUTU NKWANTABISA FOR DEFENDANT/RESPONDENT 19