The Lion Of Africa Insurance Company Ltd v. Mrs Stella Anuluoha (1972)

LawGlobal-Hub Lead Judgment Report

SIR I. LEWIS, J.S.C. 

In Suit No. 0/144/64 in the Onitsha High Court the plaintiff was the widow of one Benjamin Anuluoha who was a passenger in a vehicle driven by one P.E. Mofus alias M. Ezeoba; during the journey owing to the negligence of the driver an accident occurred resulting in the death of the plaintiff’s husband. The plaintiff, in a separate action No. 0/131/63, brought a claim against that driver, P.E.Mofus alias M. Ezeoba, under the Fatal Accidents Law, 1956 of the then Eastern Region of Nigeria and recovered in judgment the sum of 34,886pounds together with 80 guineas costs. The plaintiff then brought the present action claiming to recover the total sum awarded to her in suit No. 0/131/63, namely 34pounds, in all, from the present defendants because the defendant in suit No. 0/131/63, the negligent driver, was insured with the present defendants. The plaintiff based her claim on section 10(1) of the Motor Vehicles (Third Party Insurance) Act (Cap. 126 of the Laws of the Federation of Nigeria 1958) which reads:

“10. (1) If after a certificate of insurance has been delivered under the provision of subsection (4) of section 6 to the person by whom a policy has been effected judgment in respect of any such liability as is required to be covered by a policy issued under the provisions of paragraph (b) of subsection (1) of section 6 of this Ordinance, being a liability covered by the terms of the policy, is obtained against any person insured by the policy then, notwithstanding that the insurer may be entitled to avoid or cancel or may have avoided or cancelled the policy, the insurer shall, subject to the provisions of this section, pay to the persons entitled to the benefit of such judgment any sum payable thereunder in respect of the liability including any sum payable in respect of costs and any sum payable by virtue of any written law in respect of interest on that sum or judgment.”

Paragraph 11(b) of the amended statement of defence reads:-

“11. Paragraph 11 of the statement of claim is denied. The defendants shall ask the court to dismiss the plaintiff’s claim on the following grounds …

(b) The judgment is not in respect of a liability required to be covered by compulsory insurance. Therefore the deceased was not a third party within the provisions of Motor Vehicles (Third Party) Insurance Act or Law, consequently the defendant insurance company has no duty to satisfy the said judgment and the plaintiff cannot maintain any right of action directly against the said defendant insurance company.”

On the 31st January, 1966, Kaine J. gave judgment for the plaintiff for the sum claimed of 34pounds, together with 80 guineas costs.

The first point taken in the present case by Mr. Obi Okoye for the insurance company, the defendants, was that the learned trial judge was in error of law when he held that the plaintiff could recover by virtue of the provisions of section 10(1) of the Motor Vehicles (Third Party Insurance) Act when he said:-

“I now come to the first point raised by Mr. Obi Okoye. His contention in a nutshell is that the plaintiff is not entitled to bring this action against the defendant under the provisions of Motor Vehicles (Third Party Insurance) Act because the deceased husband of the plaintiff was a passenger in a private car and according to section 6(1)(b)(ii) of Motor Vehicles (Third Party Insurance) Act he was not deemed to be covered by the third party insurance policy because the vehicle was not a passenger vehicle but Mr. Umeadi said that the policy covered the deceased under section 6(1)(b) of Motor Vehicles (Third Party Insurance) Act and he referred the court to the case of McCarthy v. British Oak Insurance Co. Ltd., the All England Law Reports 1938 Volume 3 page I and he contended that the car was being used for social or pleasure purposes at the time of the accident and not as in the case of Wyatt v. Guildhall Insurance Company Ltd., 1937 the All England Law Reports Vol. 1, page 792 where it was a contract of hiring.

I have to say that I am inclined to agree with Mr. Umeadi. There is nothing in the judgment before me (exhibit B) to show that there was a contract of hiring between the deceased and the insured. The judgment mentioned that the deceased and the insured were friends and that the deceased and the women and the insured were travelling in the car when the accident happened. There was no evidence that any of three passengers paid the insured any money. This in my opinion disposes of the first point raised by Mr. Obi Okoye and I am therefore of opinion that this action is properly laid under section 10(1) of Motor Vehicles (Third Party Insurance) Act and therefore the plaintiff is entitled to judgment.”

It was counsel’s submission that in section 10(1) the words “judgment in respect of any such liability as is required to be covered by a policy issued under the provisions of paragraph (b) of subsection (1) of section 6 of this Ordinance” showed that it was only a liability required to be covered by section 6(1)(b) that made an insurer liable in respect of a judgment given against their insured. He further submitted that when one looked at section 6(1)(b) which reads:-

“6. (1) A policy for the purposes of this Ordinance must be a policy which:-

(b) insures such persons or classes of persons 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:-