The appellant who was the plaintiff in the action in the court below and who averred that it is the owner of a Boeing 737-200 aircraft leased to Barnax Airline Ltd. stated that on about the 3rd of January 1992 the 1st respondent's fuel truck or Bowser drove into the aircraft, hit it and damaged it severely. It further averred that it had been paid its claims in England by a consortium of insurers who collectively insured the aircraft and who substituted their rights of action to the plaintiff and, who now maintain action against the respondents in its name. It further averred that under the said lease agreement provision was made for all insurance maintained by the lessee to include the lessor as additional insured as the lessor in the "loss payee" under the agreement. It stated that it terminated this lease agreement with Barnax and regained all the rights and interest in the said aircraft and claimed damages from the respondents. The respondents as defendants denied any relationship to the underwriter of the insurance of the aircraft. They stated, inter alia, that until the suit in suit No. FHC/PH/15/92 between Barnax Airlines and the plaintiff the appellant is resolved on the issue of leas purchase agreement it will not be possible to determine the case satisfactorily. They added that factually speaking at the time of the incident the appellant had no right of action in its claim for damages.

The respondents or defendants filed a motion by way of demurrer and asked the court to dismiss the suit on the grounds that there has been failure to comply with section 58 of Insurance Decree No. 58 of 1991 as no notice was given to the 2nd defendant/respondent to have it joined. They further stated that having been compensated by the consortium of insurance companies and received proceeds, it cannot proceed against them as it was merely a loss payee and not a joint insured. The contended that the action was premature as the defendants had not been adjudged liable to Barnax who is the registered owner of the aircraft as at the time of the accident.

Whereupon the appellant as respondents to the motion in the court below filed a preliminary objection to the motion. Both the motion to dismiss the suit and the preliminary objection filed, consequent thereof were argued together. The trial court upheld the argument of the respondent and dismissed the appellant's suit.