Sun Insurance Office Ltd V Ojemuyiwa (1965)
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The applicants (hereafter referred to as the Insurers) seek leave to appeal from the judgment in the Lagos High Court Suit No. LD/436/63, given on July 15th, 1964, and for enlargement of time within which to appeal.
The respondent to this application is the plaintiff in that suit, in which the defendants are (l) F. O. George, the owner of the lorry involved in the accident which caused the death of the deceased Chief P. A. F. Ojemuyiwa, and (2) A. Afuwape, the driver. The judgment awarded the sum of £8,500 as damages against them and £ 105 as costs of suit. Following that judgment, the present respondent sued the Insurers for payment of the damages, claiming that they have a duty to pay under section 10(I) of the Motor Vehicles (Third Party Insurance) Act; the Insurers put in a defence denying the allegation that they were given notice under subsection (2)( a) of that section, and pleading that they are not liable under a judgment to which they are not a party. The suit for damages will be referred to as the first suit, and the suit for payment as the second suit.
On the 18th July the Insurers filed a motion in the High Court to set aside the judgment given on the 15th in the absence of the defendants and their counsel; the motion came up for hearing on the Ist September, and then the judge struck it out on the ground that the Insurers were seeking to set aside the judgment in a suit to which they were not a party, but said he was prepared to consider another motion with an affidavit sworn to by one of the defendants. We have been referred to Windsor v. Chalcraft  I K.B. 279, C.A., in which it was decided that as the underwriters, although not parties to the action, were liable under the Road Traffic Acts, 1930 and 1934, to pay the amount of the judgment to the plaintiff, and under the policy to pay it to the defendant, they were persons aggrieved by the judgment (which was given in default of appearance by the defendant) and as such were entitled to an order setting aside the judgment and giving them leave to enter an appearance in the action in the name of the defendant or in their own name, and to deliver a defence. We gather from the argument for the present respondent that her learned counsel concedes that the learned judge erred in striking out, as incompetent, the motion of the Insurers to set aside the judgment.
The Insurers found themselves in this difficulty: both the owner of the lorry and his driver disappeared, so they could not get either to swear an affidavit for a fresh motion to set aside the judgment obtained by default in the first suit. On the 4th September the owner wrote to the plaintiffs solicitor to look to the Insurers for payment, and on the 14th September he wrote from Coutonou, in Zanga Dahomey, to the Insurers a letter (which they received on the 3rd October) telling them that he was fed up with the case and asking them to settle the claim, he having no intention to pursue the matter further. The Insurers then applied to the High Court for leave to appeal from the judgment, but their application was struck out on the 26th October, 1964; and now they apply to the Supreme Court for leave to appeal as an interested person under section 117(6) (a) of the Constitution of the Federation, and their manager states in his affidavit that the delay is due to the evasiveness of the lorry owner, who had promised to come to the High Court Registry and swear an affidavit.
One of the objections made on the respondents behalf is that the Insurers could have appealed within the prescribed time in the name of the lorry owner, but did not. We do not think that is right: the provision in the Constitution is as follows:
Section 117 (6 ):-‘Any right of appeal to the Supreme Court from the decisions of the High Court of a territory conferred by this section:-
(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 the Supreme Court at the instance of any other person having an interest in the matter and in the case of criminal proceedings … ‘
The phrase ‘at the instance of’ means at the request of, or at the suggestion of, in current English: see the Concise Oxford Dictionary. In our opinion, 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. The English cases on what the underwriters mayor may not do in proceedings against the person insured cannot affect the plain meaning of the above provision in the Constitution. The lorry owner does not wish to pursue the matter: the Insurers have no choice but to apply for leave to appeal.
The respondent objects that the Insurers have no interest in the matter.
Her learned counsel has referred to sundry provisions in the Motor Vehicles (Third Party Insurance) Act, on the liability of insurers and on the defence against liability which the Act accords to insurers. It strikes us that the argument is very much like the dissenting judgment of Slesser, L.J, in Windsor v. Chalcraft (supra); we think that the majority judgment of Greer LJ. and MacKinnon LJ. is to be preferred, and accept the Insurers claim that they have an interest in the matter which enables them to apply for leave to appeal, which they should be given if there is no cogent reason to the contrary.
Two reasons have been advanced against it. One is that as they have put in a defence in the second suit that they are not liable for want of notice, they cannot be interested in the quantum of damages awarded in the first suit and should not have leave to appeal against the damages. There is no need to discuss this objection: for the Insurers learned counsel has told the Court that if leave is given, they will not resist liability but pay the damages as decided in the appeal.
The other objection is that the grounds in the proposed notice of appeal are vague, and, as a copy of the judgment to be appealed from is not attached to the notice of motion, the Court cannot tell whether this is a proper case for leave to appeal, the more so as the Insurers are out of time.
The delay has been satisfactorily explained. The Court usually likes to see a copy of the judgment, but in a case like the one in hand, in which it is patent that the Insurers are vitally interested in the quantum of damages, it would serve no useful purpose to hear a preliminary argument on whether the trial judge erred in one respect or another, and the whole question in its various aspects is better left to a full argument on appeal.
As to the proposed grounds of appeal, the Court would like to see the grounds in any appeal framed with more precision and clarity. The third proposed ground is that:-
‘The damages are excessive.’
That does not tell anybody anything useful; but both the other side and the court ought to be given clear indications why the damages are excessive; and the proper course is to add ‘for the following reasons’, and state what the reasons are.
The remaining reflection is that as in Nigeria, civil cases are tried by a judge alone, there is no need to conduct these fatal accident cases in a world of make-believe. At present it is usual to name the owner of the vehicle and his driver as the defendants to a suit claiming damages, and to leave the insurers, who control the defence, formally out of the suit; we would ask the solicitors of the parties to consider whether in these third party insurance cases it would not be better to have the insurers also joined. Leave to appeal is granted subject to these conditions:-
(I) that the appeal shall be confined to the quantum of damages and that the grounds of appeal shall specify the reasons why and in what respects the award was excessive;
(2) that the notice of appeal shall be filed within a month, together with a deposit of fifty pounds as security for costs and a deposit of twelve pounds towards copies of the record of appeal, and together with a note of the material which the appellants require;
(3) that the applicants shall deposit in court two thousand pounds (£2,000) towards damages, to be disposed of as the court may later direct upon the ex parte application of the respondent, to whom the applicants shall pay the £ I 05 costs in the first suit plus £30 as a provisional figure for the costs of the second suit, which may be taxed later.
The second suit between the respondent and the Insurers, viz., the Lagos High Court Suit No. LD/402/64 is hereby stayed.
Liberty to apply if necessary.
The applicants are allowed ten guineas as costs of this application, and may deduct them from the costs they are to pay pursuant to (3) of this order.
Other Citation: (1965) LCN/1295(SC)