The Yorkshire Insurance Co Ltd Vs S. Haway (1969)

LawGlobal-Hub Lead Judgment Report

COKER, J.S.C.

The Yorkshire Insurance Co Ltd., were the plaintiffs in an action instituted at the Lagos High Court, Suit No. LD/56/67, against Mr. S Haway, now respondent, and in which they claimed as follows:-

“The plaintiffs’ claim against the defendant is for the sum of £750 being money payable by the defendant to the plaintiffs for money paid by the plaintiffs to Paul Ikanrade by virtue of policy No. 98V640057 issued by the plaintiffs to the defendant and by virtue of section 8 of the Motor Vehicles (Third Party Insurance) Act and which said sum the plaintiffs have requested the defendant to repay to them which request the defendant has refused and for the costs of this action.”

The facts of the case leading to the disagreement between the parties are simple but a clear understanding of them is necessary for a just resolution of the dispute. The plaintiffs were the insurers of the defendant in respect of a number of motor vehicles under a fleet policy taken out by the defendant by virtue of three proposal forms, one in respect of each vehicle. Exhibit ‘1’ (dated the 12th November, 1964) was the proposal form (of the plaintiffs) executed by the defendant in respect of his vehicle No. KC 4734/4735 exhibit `2′ (dated 12th November, 1964) was the proposal form executed by the defendant in respect of his vehicle No. KC 4573/4574. Exhibit `3′ (dated the 23rd January, 1965) was the proposal form executed by the defendant in respect of his vehicles Nos. KC 5630/5631, KC 5628/5629 and KC 5385/5386.

The registration numbers as ascribed to the vehicles are double only because the vehicle in each case has attached to it a trailer which was separately licensed. Exhibits `1′, `2′ and `3′ are all proposal forms in the same terms and it is common ground that they constitute the usual forms in use by the plaintiffs in the normal course of their insurance business. At the bottom of each of the forms exhibits `1′, `2′ and `3′ there is a declaration to which the defendant is required to subscribe and which is phrased as follows:-

“I/We hereby warrant that all the above statements and particulars are true and I/We declare that the vehicle or vehicles described is/are in good condition and I/We agree that this declaration shall be held to be promisory and shall form the basis of the contract between me/us and THE YORKSHIRE INSURANCE CO. LTD., and I am/we are willing to accept a policy subject to the terms, exceptions and conditions pre-scribed by the Company therein. I/We undertake that the vehicle or vehicles to be insured shall not be driven by any person who to my/our knowledge has been refused any motor vehicle insurance or continuance thereof.”

It is not in dispute that the defendant duly subscribed to these declarations. On the same day the exhibits ‘1’ and ‘2’ were executed, that is the 12th November, 1964, a company by name Safa Ltd., acting as agents of the defendant, wrote a letter (admitted in evidence in these proceedings as exhibit 24) to the plaintiffs the relevant portion of which is as follows:-

“Dear Sir, Cover Note Nos. 3449 & 3451: Attached herewith are cover note Nos. 3449 and 3451 together with proposal forms duly filled by Mr. Sameh Haway. Please return the policies and certificate of insurance to us for onward delivery to Mr. Haway.”

Of the three proposal forms the one that is directly concerned in this case is exhibit ‘3’ which is dated the 23rd January, 1965, and refers to, inter alia, vehicle No. KC 5630/5631. After the execution of exhibit ‘3’ the plaintiffs issued a cover note which was delivered to and accepted by the defendant in pursuance of the transaction initiated by exhibit ‘3’. The cover note is exhibit ‘8’ (dated the 12th July, 1965) and the operative parts of that document read thus:-

“Mr. S. HAWAY having proposed for insurance in respect of the motor vehicle described in the schedule below and having paid the sum of £ the risk is hereby held covered in terms of theCompany’s usual form of comprehensive policy applicable thereto for a period of thirty days, that is to say, from 10.50 a.m. on the above date to the same time on the thirtieth day after such date.”

In the course of the litigation which ensued between the parties, evidence was given on behalf of the plaintiffs and unchallenged by the defendant that after the dates of exhibits ‘1’, ‘2’, ‘3’ and ‘8’ a certificate of insurance, produced in evidence as exhibit ‘7’, was issued by the plaintiffs to the defendant. Exhibit ‘7’ is admittedly in standard form and contains at the bottom thereof a certificate to the following effect:-

“I/We hereby certify that the policy to which this certificate relates is issued in accordance with the provisions of the Motor Vehicles (Third Party Insurance) Ordinance, 1945 (Nigeria), the Motor Vehicles (Third Party Insurance) Act, 1958 (Ghana), the Motor Vehicles (Third Party Insurance Ordinance, 1948 (Gambia) and the Motor Vehicles (Third Party Insurance,) Ordinance, 1949 (Sierra Leone).”

Also at the trial of the case evidence was given on behalf of the plaintiffs that an insurance policy in respect of the vehicles concerned in this case was issued by the plaintiffs and forwarded to the defendant. Evidence on this point was given by the witness Lesly Stewart Bell, the accident superintendent of the plaintiffs’ company and was to the following effect:-

“We added the vehicle KC 5630 & KC 5631 to the schedule of vehicles insured. The policy in respect of vehicles was despatched from our Lagos office to the defendants. A real policy was issued and sent to the defendant’s agents SAFA in Kano.”

The defendant denied this evidence and the receipt of a policy at all and his denial constitutes the basis on which the action was decided. However, a standard form of policy used by the plaintiffs in the normal course of their business was put in evidence and was admitted as exhibit ‘6 ‘. Exhibit ‘6’ is a record of an extensively detailed contract of insurance and is divided into three sections apart from a number of conditions prescribed therein and an elaborate schedule. Section I of exhibit ‘6’ deals with loss or damage and prescribes, inter alia, that the plaintiffs will indemnify an insured against loss or damage to the motor vehicle described in the schedule and/or its accessories whilst thereon by accidental collision, etc. Section II prescribes the nature and/or extent of the liability of the plaintiffs on the contract to third parties. Section III prescribes some of the circumstances of limitations and exceptions of liability and provides, amongst other things, as follows:-

“Nothing in this policy or any endorsement hereon shall affect the right of any person indemnified by this policy or any other person to recover an amount under or by virtue of the provisions of the legislation specified in the schedule. BUT the insured shall repay to the Company all sums paid by the Company which the Company would not have been liable to pay but for the said provisions.”

The portion of exhibit ‘6’ dealing with the conditions opens thus:-

“This policy and the schedule shall be read together and any word or expression to which a specific meaning has been attached in any part of this policy or of the schedule shall bear the same meaning wherever it may appear.” And conditions Nos. 1 and 9, insofar as they are relevant to the present case, read as follows:-

“1. Notice shall be given in writing to the Company immediately upon the occurrence of any accident or loss or damage and in the event of any claim. Every letter claim writ summons and/or process shall be forward-ed to the Company immediately on receipt by the insured. Notice shall also be given in writing to the Company immediately the Insured shall have knowledge of any impending prosecution inquest or fatal inqui

Other Citation: (1969) LCN/1649(SC)