MR. & MRS. D.J.B. PERERA (PLAINTIFFS)

v.

MOTOR & GENERAL INSURANCE CO. LTD (DEFENDANT)

(1971) All N.L.R. 586

Division: High Court, Kano

Date of Judgment: 1st November, 1971

Case Number: SUIT NO. K/74/70

Before: Jones, S.P.J.

Civil Action.

HELD:

(1)     When a person acting on a power of attorney files on behalf of the donor his name should not appear on the writ and the suit should be prosecuted as if by the donor.

(2)     The objection to the validity of the power of attorney was not an issue in the case because it had not been pleaded.

(3)     The claim was not based on contract but on defendant company's statutory liability under s. 10(1) Motor Vehicles (Third Party Insurance) Act.

(4)     The letters were worded so as to constitute notice under s. 10(2)(a) Motor Vehicle (Third Party Insurance) Act even though they also contained an offer to negotiate, because they limited the time for negotiations to fourteen days and stated that failing such negotiations Counsel had instructions to file suit. This was more than an intimation that in certain circumstances suit might be filed; it gave notice of definite instructions to file after fourteen days.

(5)     There is a rebuttable presumption of delivery of letters sent by ordinary post. If there is defence evidence on non-delivery, that is a question of fact to be decided by the court on a careful study of the evidence.

(6)     Defence evidence was not adequate to rebut the presumption of delivery of the letters of statutory notice.

Judgment for Plaintiff.

Cases referred to:

Chief Subi Jimbo & others v. Aminu Asami, (unreported) SC. 373/67.

Alexander Mountain & Co. (sueing as a firm) v. Rumere Ltd., (1948) 2 KB 436.

Etablissement Ramdelot v. R.S. Graham & Co. Ltd., (1953) 2 QB 271.

Ceylon Motor Insurance Association Ltd. v. Thambugala, (1953) 2 All E.R. 870.

Wedrick v. Essex and Suffolk Equitable Insurance Society, (1950) 83 L1.L.R. 91.

National Employers Mutual General Insurance Association Ltd. v. Ladun Martins, (Unreported) SC. 74/1969.

CIVIL ACTION.

SUIT NO. K/74/70.

L.O. Sanyaolu for Plaintiffs.

F.A. Thanni for Defendants.

Jones, S.P.J.:-This is an action against an Insurance Company, Motor and General Insurance Company for payment of the judgment debt and costs awarded to the plaintiffs in the consolidated case K.5 and 6/1969 in respect of a motor vehicle collision for which one W. Zakia was found liable in damages. Although in the pleadings, defendants did not admit being the insurers of W. Zakia against such liability, the statement of defence makes it clear (in para. 8) that the basic defence is that the statutory notice of the original actions was not given; and the only defence witness admitted that W. Zakia was insured by this company. The context of that admission necessarily implies that this insurance was in respect of the subject matter of plaintiff's claim against W. Zakia.

The judgment which is the basis of this action has been proved by putting in evidence the whole proceedings in the consolidated case mentioned above, which proceedings include the judgment. That judgment was for a total of £5,382-4s-0d plus £300 inclusive costs. And that is the amount of the present claim.

Mr Thanni for defence has pleaded two issues and has argued three. He was not, of course, entitled to argue an issue not contained in the pleadings; Chief Subi Jimbo and others v. Aminu Asami (unreported) SC. 373/67.

I cannot therefore take his third argument into consideration in deciding this case. I will, however, mention it because it appears to be based upon a misunderstanding by Counsel on both sides as to the position of Mr Simhani who has brought this action on the authority of plaintiffs under a power of attorney. Mr Thanni has attacked that authority and has supported his attack by reference to the contents of the two powers of attorney produced by Mr Simhani "Exhs. 1 and 2." This objection was not raised in the pleadings for the simple reason that no power of attorney was mentioned in any of the pleadings. Nor should it have been mentioned. The statement of claim quite rightly in paragraph 1 refers to husband and wife as plaintiffs. These are clearly Mr and Mrs Perera who were the successful plaintiffs in the previous consolidated action and whose names appear in the title of this suit. That was correct; the plaintiffs in this suit are Mr and Mrs Perera. The fact that Mr Simhani is their attorney is irrelevant. Plaintiffs' solicitor has mistakenly added in the title after "Mr and Mrs D.J.B. Perera", the words "by their attorney J.C.A. Simhani." These words should not have been added. Atkin's Court Forms, 2nd Edition Vol. IV page 79 says this:-

"In the simple case where a power of attorney is given to someone to bring an action in the name and on behalf of the donor, the proceedings should be in the name of the principal and the title of the proceedings will not indicate that another person has been empowered to act on his behalf; the action proceeds as if the principal had not delegated to an attorney the taking of the proceedings."

The adding of Mr Simhani's name to the title of the suit was therefore improper and the production as evidence in the suit of the two powers of attorney was irrelevant and they should not have been admitted. Had there been no mention of the power of attorney, Mr Thanni would have had nothing to object to. And this unpleaded issue would never have seen the light of day.

I could order an amendment of the title under Order 33 Supreme Court (Civil Procedure) Rules and strike out the additional words if I thought it necessary, but I cannot see that in the words of Order 33 Supreme Court (Civil Procedure) Rules these additional words "tend to prejudice, embarrass or delay the fair trial of the suit" or that amendment is necessary "for the purpose of determining ... the real question in controversy between the parties." I take the offending words to be superfluous and irrelevant. In Alexander Mountain & Co. (sueing as a firm) v. Rumere LD. (1948) 2 KB 436 Cohen LJ. Stated with approval the following passage from Stephen Principles of Pleadings, First Ed. (1824) page 320, where the learned author dealing with the effect of misnomer of a plaintiff said:-

"The defendant by summons supported by affidavit can compel the plaintiff to amend the action. If he does not do so, and the matter proceeds to trial, it is submitted that the misnomer can then be amended, and that in no circumstances could the misnomer affect the substantive judgment which the court is called upon to pronounce."

This statement of the law was again approved by the Court of Appeal in Etablissement Baddelot v. R.S. Graham & Co. Ltd. (1953) 2 QB 271. In both English cases the misnomers of plaintiffs were amended. They had to be amended because as they stood they connoted a non-existent person and not the real plaintiffs. That is not the case here. In the present case, the names of plaintiffs are correctly stated, and are not vitiated by the added words as to Mr Simhani's power of attorney. I hold the view that I can ignore the added words as mere persiflage having no legal significance in that context. No amendment is necessary. This is a case in which truly (to quote learned author of Stephen again) "in no circumstances could the misnomer affect the substantive judgment." I need say no more.

The two issues pleaded are: first, that statutory notice was not given and secondly that there is no privity of contract between plaintiff and defendant company. The second defence has no merit. This action is not based on privity of contract; it is based on the statutory liability in section 10 of the Motor Vehicles (Third Party Insurance) Act, which makes the insurers liable to pay persons who obtained judgment against persons insured by them on a claim covered by the policy.

Section 10 is subject to certain provisos. One of these provisos is that the insurers will not be liable to pay "unless before or within seven days after the commencement of the proceedings in which the judgment was given, the insurer had notice of the bringing of the proceedings" (section 10(2)(a)).

This is Mr Thanni's main defence. For the plaintiff, two letters have been put in evidence. They are exhibits 6 and 7. Mr Thomas, the second plaintiff's witness, has given evidence that he was representing plaintiffs in December, 1968 and in 1969. He represented plaintiffs in the consolidated suit under reference. He says that two previous actions were prosecuted on the same claim, in which he represented the plaintiffs and Mr Thanni represented the defendants. In those two previous actions plaintiffs were non-suited. That was in December, 1968. He says that Mr Thanni appeared for the defendants having been briefed by the insurance company, the present defendant company. The defence witness, the Manager at Lagos Head office of defendant company has confirmed this. In that same month, Mr Thomas wrote a letter to Mr Thanni saying "unless a satisfactory settlement is reached within the next fortnight, my instructions are to file another writs in view of the latest development." He sent this letter by registered post. With regard to this letter, the defendants have pleaded that at the relevant date, Mr Thanni was not their solicitor. There is no evidence for the defence in support of this pleading. Mr Thomas has said in evidence in cross-examination that he does not agree that Mr Thanni had no instruction to act for Motor and General Insurance Company after 30th December, 1968. He posted exh 6 on the 2nd January, 1969. The known facts are that Mr Thanni was briefed by defendant company to defend a case which concluded in December, 1968. He has been briefed in the present suit by defendant company. He wrote a letter, exh. 8 on the 19th of August, 1969, stating that defendant company were his clients. On this evidence, I cannot say that defendant company has held out Mr Thanni to be their legal representative between December 1968 and August, 1969 or that Mr Thanni has done so either. I therefore find that the letter to Mr Thanni cannot constitute notice to defendant company.

However, that is not the end of the matter, Mr Thomas says that he sent a copy of exh. 6 to the General Manager of defendant company at Lagos at the same time as he sent the original of exh. 6 to Mr Thanni. He sent this copy by ordinary post because post because he had previous communication by ordinary post with defendant company. He also at the same time sent to the General Manager of defendant company at Lagos by ordinary post the letter exh. 7 informing him of the letter exh. 6 and saying "I have to advise you that I have today addressed a letter to your solicitor, Mr F.A. Thanni-(copied you) wherein I intimated that unless a satisfactory settlement was reached within a fortnight ... I have instructions to apply for two writs of summon against your insured W. Zakia ..." Mr Sanyaolu for plaintiffs has submitted that both these letters exh. 6 & 7 constitute notice under section 10 Motor Vehicles (Third Party Insurance) Act and he has cited the case-Ceylon Motor Insurance Association Ltd. v. Thambugala (1953) 2 All E.R. 870 where almost identical wording was held by the Privy Counsel to be sufficient notice. I have had some doubt whether I should take this point because it is not specifically pleaded in the statement of defence. On consideration I think it can be included into para. 8 of the statement of defence which says that defendant will "rely on the provisions of the Motor Vehicles (Third Party Insurance) Act which relate to notice." In Weldrick v. Essex and Suffolk Equitable Insurance Society (1950), 83 L1.L.R. 91 cited in Bingham's Motor Claims Cases, Sixth Edition page 644, where identical provisions as to notice contained in the English Road Traffic Act, 1934 were considered it was held that formality was necessary for such a notice and a statutory requirement of this kind must be strictly fulfilled. In that case the words,

"We understand your Society has repudiated liability and we shall be grateful to have your confirmation thereof in writing, because you will appreciate, we shall have to take proceedings as against Mahomed, ..." were held not to be notice but to be only an intimation that in certain circumstances proceedings might be brought.

It might be said that Mr Thomas' letters, exhs. 6 and 7 are both conditional upon failure of negotiations and are therefore not notice that a writ will be or has been filed but only intimation that a writ may be filed if negotiations break down. A contrary view would be that what these letters both say is that defendant company has two weeks within which to settle the claim and that if they fail to do so within that time, the writs will be taken out. This later interpretation commends itself to me. These letters are much more in the form of a notice of intention to file suit than the letter in Wedrick (above) and the limitation to two weeks of the period allowed for settlement clearly indicated that plaintiffs intended to file suit at the end of that period. Weldrick is therefore distinguished. The Ceylon Motor Insurance Association's case is on a par with the present case, and I find myself in agreement with Mr Sanyaolu that both these letters as far as their contents are concerned are sufficient notice under section 10 of the Act.

But the defendants have pleaded that they received neither of these letters. This is an issue of fact which I must resolve by carefully weighing the evidence and making a clear finding of fact as to the delivery or non-delivery of the letters. In the above sentence, I have paraphrased Madarikan, J.S.C. in National Employers Mutual General Insurance Association Ltd. v. Ladun Martins (unreported) SC. 74/1969. In that case the learned Federal Judge said further:-

"Proof that a letter was properly addressed and posted is prima facie evidence that it was delivered to the addressee in due course. But where ... 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 present case, Mr Thomas has said that he posted a copy of exhibit 6 and the original of exhibit 7 to defendant company at Lagos. There is no evidence attacking the addresses shown on either letter. By section 148 Evidence Law, it is rebuttable presumption that a letter posted by ordinary post will reach its destination within Nigeria, and I would say that I think it likely that a letter so posted in Kano to an addressee in Lagos will arrive in Lagos within a few days.

Therefore unless there is evidence for the defence on non-delivery of these letters I must find that defendant company received statutory notice. The addressee of both letters is the General Manager of defendant company. The evidence for the defence is that of the Manager at Head office Lagos, who has said he received neither of these letters. However, this witness admitted that in certain circumstances, letters would go direct to the General Manager without passing through his hands, and might be replied to by the General Manager without them passing through him. Witness was not the addressee, and he cannot speak for the General Manager. His evidence does not therefore cover all possibilities of delivery. It seems to me that to rebut the presumption of delivery the evidence of the General Manager, the addressee was essential. There was no other witness for the defence. There is therefore no adequate evidence to rebut the presumption arising from Mr Thomas's evidence. This presumption is that both letters were delivered to defendants' General Manager. Plaintiffs have therefore proved that the requisite statutory notice was given.