National Employers Mutual General Insurance Association Ltd Vs Ladun Martins (1969)

LawGlobal-Hub Lead Judgment Report

MADARIKAN, J.S.C.

This is an appeal from the judgment of Lambo J. in the High Court, Lagos (Suit No. LD/337/68). In the court below, the gist of the plaintiff’s case was that:

(1) by a Policy of Insurance No. 113839, the defendants undertook to indemnify one R. E. Ezekiel Hart in respect of sums which he shall become legally liable to pay for bodily injury to any person caused by, or arising out of, the use of motor vehicle No. LG. 9273;

(2) whilst the Policy was in force, the insured drove the vehicle negligently along Lewis Street, Lagos, on the 11th of September, 1965, and collided with the plaintiff whereby she sustained bodily injuries;

(3) in consequence thereof, she took out a writ in Suit No. LD/440/66 against the insured claiming damages for negligence and also notified the defendants of the bringing of the action; and

(4) in the said action (i.e. Suit No. LD/440/66) judgment was entered in favour of the present plaintiff against the insured in the sum of £3745.4s.0d. The plaintiff’s claim in the present action is set out in paragraph 13 of her statement of claim as follows:-

“(1) A declaration that the judgment (in Suit No. LD/440/66) was in respect of a liability required to be covered by a Policy of Insurance.

(2) A declaration that pursuant to the said Policy, the defendants are liable to pay the sum of £3,745.4s.0d being the said sum under the said judgment with interest at 4%

(3) Costs.”

In a reserved judgment, the learned trial judge came to the conclusion that the plaintiff had established her claim and entered judgment in the following terms:

“On the whole I am satisfied that the plaintiff has established her claim against the insurers and, accordingly, is entitled to a declaration as per her statement of claim, to wit:-

(1) that the judgment in Suit No. LD/440/66 was in respect of a liability required to be covered by a Policy of Insurance No. 113839 issued to one R. E. Ezekiel Hart and dated the 2nd day of September, 1964;

(2) that pursuant to the said Policy the defendants are liable to pay to the plaintiff the sum of £3745.4s.0d. being the said sum under the said judgment with interest at 4% The plaintiff is awarded the costs of this action which, together with £38.4s.3d. out-of-pocket expenses, I assess and fix at 158 guineas.”

This is an appeal against that judgment, the main contention before us being that the defendants were not liable as insurers to satisfy the judgment debt in Suit No. LD/440/66 inasmuch as before or within 7 days after the commencement of that action, the present plaintiff failed to notify them of the bringing of the action as required by section 10(2) (a) of the Motor Vehicles (Third Party Insurance) Act, Cap. 126. It is convenient at this stage to refer to the pleadings. In paragraph 9 of the statement of claim, the plaintiff pleaded that: