30TH DECEMBER, 1957.

F.S.C. 24/1957

3PLR/1957/22 (SC)



SIR STAFFORD FOSTER-SUTTON, F.C.J.  (Presided and Read the Judgment of the Court)











James Mitchell – for the Appellant.

C. Nwapa -for the Respondents.



TORT AND PERSONAL INJURY LAW: Fatal accident – Liability of insurance company for damages arising from a vehicular accident involved a vehicle under an insurance policy – Liability for injury or death of passenger – How treated

INSURANCE AND REINSURANCE LAW:- Construction of a Policy of Insurance – “Limitations as to use” – When the insured will be entitled to indemnity in respect of any risk actually covered by the policy – “User permitted” distinguished from “risks covered” by the policy – Extent of liability of an insurer to damages arising from a vehicular accident

CHILDREN AND WOMEN LAW: Women and Justice Administration – Widows and fatal Accident proceedings – Claim in respect of deceased/husband by wife – Assessment of damages and liability to pay same – How treated




FOSTER-SUTTON, F.C.J. (Delivering the Judgment of the Court):


These proceedings were brought by the widow of one Titus Azukemu, deceased, claiming damages for the negligence of the 1st defendant’s driver which re­sulted in the death of her husband.


The evidence called on behalf of the plaintiff in the Court below, which was not disputed, showed that on the first day of February, 1955, her hus­band, Titus Azukemu, was a passenger on the 1st defendant’s motor lorry which was then proceeding from Owerri to Aba, and that while it was pro­ceeding on its way it collided with another vehicle, causing injuries to the plaintiff’s husband which resulted in his death.


There can be no doubt that the deceased met his death as a result of the negligent driving of the 1st defendant’s servant. This was not contested in the Court below and, indeed, on the evidence, it would have been impossi­ble to do so.


Originally, the proceedings were brought against the 1st defendant only, but before trial the 1st defendant made a successful application to the Court to join the 2nd defendant, the Northern Assurance Company Ltd. This step was taken because there was a dispute between the 1st and 2nd de­fendant as to whether the former was covered by a policy of insurance issued by the Company, under which it was liable to indemnify the 1st defendant for any damages the Court might award against him as a result of the acci­dent.


The learned trial Judge held that at the time of the accident the 1st de­fendant was covered by a valid policy of insurance which rendered the 2nd defendant liable to pay the sum of a £1,000 which he awarded as general damages, and it is against this decision that the 2nd defendant appealed.


The evidence established that on the 18th February, 1954, the 1st defen­dant purchased a motor lorry from the Company Francaise de l’Afrique Oc­cidentale (shortly referred to as the C.F.A.O.), and that the Company were then agents for the 2nd defendants who are an Insurance Company approved under the Motor Vehicles (Third Party Insurance) Ordinance, Cap. 139. On the same day, 18th February, the 1st defendant paid to the C.F.A.O. the sum of a £3.10s. and was thereupon issued with an insurance cover note, Exhibit “DI,” valid for thirty days from that date.


At the time the payment for a £3.10s. was made, the 1st defendant signed a proposal form, Exhibit “D5,” for what is described thereon as an “Act Policy,” to be effective from the 18th February, 1954 to the 17th Feb­ruary,1955.


It would appear from the 1st defendant’s evidence that he never re­ceived a policy of insurance pursuant to this proposal form, but I think the actual cover given by the Company in respect of it can clearly be recon­structed from the documents before us.


The proposal form is headed “Policy No. M.B. MA 232460” and the 2nd defendant tendered in evidence a document, said to be a carbon origi­nal, headed “Policy No. MA (MB) 232460 The Schedule.” The other relev­ant document is a Certificate of Insurance, tendered in evidence, Exhibit “D4,” which was issued by the 2nd defendant in respect of Policy No. 232460, valid for the period 18th February, 1954, to the 17th February, 1955, and I think it is beyond doubt that the document relates to a policy of insur­ance effected by the 2nd defendant pursuant to the proposal form, Exhibit “D5,” and the payment by the 1st defendant of the premium of a £3.10s.


I do not think that there can be any doubt that the contract between the 1st defendant and the 2nd defendant was to give the former cover in respect of insurance required to be effected under the provisions of the Motor Veh­icles (Third Party Insurance) Ordinance, generally referred to as an “Act Policy.”


The appellants contended that on the day of the accident the 1st defen­dant was not covered for liability in respect of injury or death occurring to the person being carried in his vehicle unless such person was being so car­ried by reason of or in pursuance of a contract of employment, and it was not suggested that the exception applied to the deceased.


The learned trial Judge took the view that the Certificate of Insurance, Exhibit “D4,” and the Schedule, Exhibit “D7,” precluded the appellants from denying liability, but he does not appear to have directed his mind to the question whether an “Act Policy” covers the risk we are dealing with here.


The relevant portion of Section 6 (1) of the Motor Vehicle (Third Party Insurance) Ordinance provides:

“A policy of insurance for the purposes of this Ordinance must be a pol­icy which –

(a)     is issued by an insurer approved by the Governor in Council; and

(b)     insures such persons or classes of person as may be specified in the policy in respect of any liability which may be incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of a motor vehicle covered by the policy.

Provided that such policy shall not be required to cover –

(ii)     save in the case of a passenger vehicle or where persons are carried by reason of or in pursuance of a contract of employment lia­bility in respect of the death of or bodily injury to persons being carried in or upon or entering or getting on to or alighting from a motor vehicle at the time of the occurrence of the event out of which the claims arise;

and it is relevant to observe that the proposal form, Exhibit “D5,” signed by the 1st defendant, expressly provides that the cover required is in respect of a vehicle to be used for “carriage of own goods only.”


The learned trial Judge may have been misled by the words to be found on the Certificate of Insurance, Exhibit “D4”

“Limitations as to use: use in connection with the policy holders’ business; whilst the vehicle is being so used the carriage of passengers (other than for hire or reward) is permitted,”

construing them to mean that injury to a passenger on the vehicle, not proved to have been carried for reward, was covered, but I do not think that is the construction to be placed upon them. All I understand those words to mean is that if an accident, loss or liability occurs whilst the insured vehicle is being used to carry passengers, other than for hire or reward, the insured will still be entitled to indemnity in respect of any risk actually covered by the policy. In other words, they relate to user permitted, not to risks covered by the policy.


It seems to me clear that the 1st defendant could have been under no il­lusion as to the cover he would obtain as a result of his proposal form, Exhibit “DS,” because on the 15th March, 1954, he signed another proposal form, Exhibit “D6,” and paid a further premium, for a policy of insurance which would have given him cover for precisely the liability which arose in this case, but unfortunately the cover he asked for in that proposal form was for a period of six months only, that is to say, from the 15th March, 1954, to the 14th September, 1954. It is true that the 1st defendant stated in his evi­dence that when he received the policy which was issued to him pursuant to this proposal form, Exhibit “D3,” he complained about the period it was is­sued for and was told by a Clerk of the C.F.A.O. that he would be issued with another policy, but I find it difficult to believe that evidence since the policy issued covered the exact period he had asked for in his proposal form.


On the evidence before us, I am satisfied that the 1st defendant was not covered by a policy of insurance issued by the 2nd defendant for the liability which arose in this case and that the learned trial Judge erred in holding that he was.


That being so, I would allow this appeal, and amend the judgment of the Court below by entering judgment for a £1,000 damages, and costs asses­sed at 50 guineas, in favour of the plaintiff against the 1st defendant only.


Mr. Mitchell, Counsel for the appellant, stated that if his clients were successful on this appeal he would only ask for an order of 50% of their costs in the Court below, such order to be against the 1st defendant upon whose motion his clients were joined, and that they would not ask for any costs on this appeal.

The appellant is undoubtedly entitled to an order for costs in the Court below, I would accordingly further amend the judgment by including an order against the 1st defendant awarding the 2nd defendant 50% of its taxed costs in the Court below; and in the circumstances I would make no order as to costs on this appeal.


DE LESTANG, F.J.: I concur.


ABBOTT, F.J.: I concur.


Appeal Allowed

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