5TH MARCH, 1965

FSC. 132/1963; LD/98/61

3PLR/1965/40 (SC)










TORT AND PERSONAL INJURY:- Claim for damages to motor vehicle – Negligent driving – Where proved and judgment made against defendants – Post-judgment agreement to settle for a named sum in lieu of execution of judgment – Application by insurers of defendants to subsequently appeal judgment out of time in name of defendant – Condition precedents – Effect of failure thereto

INSURANCE AND REINSURANCE:- Insurers – Right to appeal judgment made against insured defendant for negligent driving – Conditions precedent – Where insured has abandoned appeal – How appeal can be validly brought – Whether insurer can bring appeal in name of insured – Section 117(6)(a) of the Constitution of the Federation, 1963 – Spirit of

CONSTITUTIONAL LAW:- Section 117(6)(a) of the Constitution of the Federation, 1963 – Spirit of – Interested party seeking to bring a third party appeal against a judgment not originally a part of – Conditions precedent – Need for leave to bring suit in own name and out of time

ALTERNATIVE DISPUTE RESOLUTION:- Post-judgment agreement – Agreement between judgment-creditor and judgment-debtor to settle for a given sum as full and final satisfaction of an application to execute the judgment and attach properties of judgment-debtor – Application by insurers of judgment-debtor to appeal the judgment on their own in the name of the judgment-debtor – How treated

DEBTOR AND CREDITOR:- Judgment debt arising from damages awarded against an insured person for negligent driving – Action to execute judgment with properties of judgment-debtor attached – Where subsequently settled for a mutually agreed sum between parties – Payment by insurers to the insured relating to the accident – Whether entitles insurers to right of appeal in name of insured/judgment-debtor against judgment-creditor – Relevant considerations

PRACTICE AND PROCEDURE – APPEAL:- Third party interested application to bring an appeal against judgment not originally a party to – Conditions precedent – Need to seek and obtain leave of court – Effect of failure thereto

INTERPRETATION OF STATUTE:-1963 Constitution of the Federation, s.117(6)(a) – Spirit of



G. Bentley for the applicants

A. Atilade for the respondent.




BAIRAMIAN, J.S.C. (delivering the judgment of the Court):-

It will be useful to begin the Court’s decision on this motion of the insurers with a preface of events.


The Jarmakani Transport Ltd. (Jarmakanis for short) had a lorry which in mid-September, 1960 was responsible for an accident to a lorry owned by Alhaji Kalla; his lorry was badly damaged and had to undergo repairs, which took quite a long time. Alhaji Kalla asked Jarmakanis to pay, and they asked their insurers to consider the claim, but they repudiated it. He sued Jarmakanis, who defended the suit; judgment went against them on 20th November, 1961 and they appealed on the 21st. Alhaji Kalla took out a writ of execution and attached the vehicles of Jarmakanis, who thereupon made an agreement on 8th January, 1962 to pay £1,500 out of the damages awarded against them at once and the balance of £1,110 in four instalments beginning with the end of February, 1962, and on the other hand Alhaji Kalla gave up his attachment of their vehicles; the case between them was thus settled out of court, and there was no longer any appeal left.


After the judgment against Jarmakanis, the British India General Insurance Co. Ltd. submitted the dispute between themselves and Jarmakanis to arbitration, which went against the said Insurance Co. (to be called the Insurers); and the Insurers paid Jarmakanis the damages and costs of the judgment against them. The insurers say in their affidavit that Jarmakanis gave them a letter of subrogation and an undertaking to prosecute the appeal they had filed, but more recently they told the Insurers that they were not interested in prosecuting the appeal since they had paid Alhaji Kalla. The fact is that there was no appeal of theirs left in view of their agreement with Alhaji Kalla. According to his affidavit, Jarmakanis had paid him before they were paid by the Insurers under the arbitration award.


With that preface we come to the application in hand by the Insurers-”for an order pursuant to section 117(6)(a) of the Constitution of the Federation that the British India General Insurance Company Limited may exercise the right of appeal against the decision of the High Court of Lagos dated the 20th of November, 1961 in this action ‘or for such other order or orders as may be just”- which the Insurers filed on 20th January, 1965.


The said provision is that

“Any right of appeal…

(a)     shall be exercisable in the case of civil proceedings at the instance of a party thereto or, with the leave of the High Court or of the Supreme Court at the instance of any other person having an interest in the matter. . .”


The Court had occasion, in Sun Insurance Office Ltd. v. Victoria Olayibo Ojemuyiwa, S.C. 502/1964, decided on 12th January, 1965, to explain that when an appeal is brought in the name of a party it must be on his instructions, and a person having an interest in the matter cannot launch an appeal in the name of a party but must obtain leave to appeal. In that case the insurers, through no fault of theirs, applied for leave about a month after the prescribed three months allowed for appeal, and added a prayer for extension of time.


The present Insurers rely on that decision, but their notice of motion does not pray either for leave to appeal or for extension of time, although their motion is more than three years since the judgment, and their affidavit does not give the date of going to arbitration or the date of the award and of payment to Jarmakanis. There is no effort to explain and justify the delay, and the reason why the notice of motion is framed as it is, and why the affidavit is so meagre, is doubtless this-that the present Insurers want an order to prosecute the appeal brought by Jarmakanis; for their learned counsel’s argument is that as they have paid Jarmakanis, they stand in their shoes and can proceed against Alhaji Kalla. But Jarmakanis do not wish to prosecute their appeal against him; in fact they gave it up in January, 1962; and in any event it would be contrary to the spirit of section 117(6)(a) of the Constitution of the Federation to authorise a person to prosecute an appeal in the name of a party who does not wish to go on with his appeal.


If there is to be an appeal at all, it must be in the name of the Insurers as the appellants by leave of court coupled with an extension of time, but the notice of motion does not apply for either leave or extension, and either for this reason or for the former one this application must be refused.


The motion is dismissed with fifteen guineas costs in favour of the respondent Alhaji Kalla.

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