National Employers Mutual General Insurance Association Ltd Vs Ladun Martins (1969)
LawGlobal-Hub Lead Judgment Report
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%
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:
“The defendant has notice of the plaintiff’s intention to institute legal proceedings against the said R. E. Ezekiel Hart for redress in respect of his negligent driving before and after the commencement of the action.”
And, in answer thereto, the defendants in paragraph 5 of their statement of defence stated as follows:-
“The defendant denies paragraph 9 of the statement of claim and avers that no notice of the bringing of the proceedings as required by Section 10(2) (a) of the Motor Vehicles (Third Party Insurance) Act Cap. 126 was given to the defendant before or within seven days after the commencement of the proceedings referred to in paragraph 10 of the Statement of Claim”.
At the trial, the plaintiff relied upon two letters (marked Exhibits ‘K’ and ‘M’) as constituting notices under Section 10(2) (a). The crucial point to be decided in this appeal is whether the learned trial judge was right in regarding Exhibits ‘K’ and ‘M’ as sufficient notices under that section, and, if so, whether they were served on the defendants. Exhibit ‘K’ is a letter dated the 19th of May, 1966, addressed by the plain-tiff’s solicitor to Mr. Hart and copied to the defendants. It reads as follows:-
“Mr. E. Hart, Inspector-General of Police, Police Headquarters, Moloney Street, Lagos. Sir, I am instructed by my client Miss Ladun Martins of 29 Makinde Street, Surulere to demand from you the sum of £6,000 being special and general damages resulting from your negligent driving. On or about the 11th day of September, 1965, you drove your Car No. LG. 9273 negligently at Lewis Street, Lagos. As a result of your negligent driving, you collided with my client and caused her grievous bodily injury. Her both legs were injured. My client was immediately rushed to Orthopaedic Hospital at Igbobi where she was operated upon and admitted into the hospital for treatment which lasted for some months. Up till now, my client goes to the hospital for treatment. TAKE NOTICE therefore that unless you pay as demanded above or make a satisfactory arrangement with me on or before the 31st day of May, 1966, I shall carry out my further instructions and that without further notice.
(Sgd.) A. A. OSHODI
Solicitor Copy to:-
National Employers Mutual Insurance Company,
12/14, Broad Street, Lagos.
Policy No. 113839.
Mr. Impey has submitted, and we agree, that Exhibit ‘K’ is not sufficient notice under section 10(2) (a) as it merely contains a warning that if certain demands were not met within the period stated therein, the plaintiff’s solici-tors would carry out further instructions. Exhibit ‘K’ did not disclose what those instructions were, and what is more important is that it did not notify the defendants of the bringing of an action. Exhibit ‘K’ cannot amount to a proper notice under section 10(2) (a) as it did not notify the insurers of the bringing of an action against the insured. In our view, the learned trial judge was wrong in holding that Exhibit ‘K’ constituted a notice under sec-tion 10(2) (a). The second letter to which reference was made by counsel is Exhibit ‘M’ which is a copy of a letter dated the 18th of August, 1966 addressed to the defendants by the plaintiff’s solicitors. It reads as follows:-
‘66 The Manager, National Employers Mutual Insurance Co.,
12/14, Broad Street, Lagos.
I have this day given Mr. E. Hart notice of my client’s intention to institute legal action to enforce payment of my client’s claim for damages against him. I enclose herewith the proposed writ of summons. PAGE| 5 TAKE NOTICE therefore that unless Mr. Hart or your Company pays the said sum of £6,000 as demanded by the proposed writ of summons, on or before Monday the 27th day of August, 1966, I shall file the writ of summons in Court and that without further notice.
(Sgd.) A. A. Oshodi Solicitor”
Whist conceding that Exhibit M was sufficient notice under section 10(2)(a), Mr. Impey contended that it was not served on the defendants. He referred us to the evidence of one Olayinka Binuyo, a clerk in the chambers of the plaintiff’s solicitors, who testified that he enclosed the original of the letter (Exhibit ‘M’) in an envelope on the 18th of August, 1966, affixed a 4d postage stamp to it and posted it. As against that evidence, counsel also referred us to the evidence of one Clarence Robert Terry, the Claims Superintendent for the defendants. He testified that, at the material time, it was part of his duties to collect and open letters addressed to the defendants.
He admitted receiving Exhibit ‘K’ but denied ever receiving the original of Exhibit ‘M’. Put concisely, the argument of Mr. Impey is that where, on the one hand, there is evidence that a letter was posted, and on the other hand, the addressee has asserted in his evidence that he never received it, the issue of its delivery being one of fact, in resolving it the court must carefully weigh the evidence and make a clear finding of fact as to the delivery or non-delivery of the letter.
Counsel finally submitted that in the instant case, the court failed to do this inasmuch as before holding that Exhibit ‘M’ was delivered to the defendants, the learned judge did not expressly reject the evidence of Mr. Terry who testified that he never received the original of Exhibit ‘M’. Proof that a letter was properly addressed and posted is prima facie evidence that it was delivered to the addressee in due course.
But whore, as in this case, the addressee has led evidence that he did not receive the letter, then a straight issue of fact is raised, and before making a finding of fact as to the delivery or non-delivery of the letter, the court ought to examine the evidence carefully.
In the instant case, we are satisfied that the learned trial judge sufficiently reviewed the evidence in this regard, and that on the strength of Binuyo’s evidence which he accepted as the truth, he was fully justified in coming to the conclusion, as he did, that the original of Exhibit M was delivered to the defendants. Another point raised in the appeal related to the award of 4% as interest on the judgment. As stated earlier, judgment was entered for the plaintiff against the defendants in the sum of £3,745.4s.0d. with interest at 4%. Mr. Impey has attacked the award of in
Other Citation: (1969) LCN/1622(SC)