Royal Exchange Assur. Co. Ltd v Bazzy, 1972-73 ALR S.L. 336

5 10 15 20 25 30 35 40 SECTION 41 THE AFRICAN LAW REPORTS S.C. ROYAL EXCHANGE ASSURANCE COMP.A.NY LIMITED v. BAZZY Supreme Court (Betts, J.S.C., Bridges, C.J. (Gambia), Luke and Forster, JJ. S.C.; and Browne-Marke, J.A.): October 17th, 1973 (Civ. App. No. 1/72) [ 1] Insurance-motor vehicles-permitted driver-provision specifying per­ mitted drivers is condition for purposes of Motor Vehicles (Third Party Insurance) Act (cap. 133), s.9 but not avoided by that section: The word "condition" in s.9 of the Motor Vehicles (Third Party Insurance) Act (cap. 133) means a "term" or "provision" in a policy of insurance, so that a provision specifying who shall be permitted drivers is a condition specifying the "person or classes of person" insured by the policy (page 363, lines 31-36). [ 2] Insurance-motor vehicles-rights of third parties-right of action against insurer-insurer liable to satisfy third party's judgment against insured only where Motor Vehicles (Third Party Insurance) Act (cap. 133) and terms of policy observed-breach of term of policy negatives insurer's liability: Though s.11 of the Motor Vehicles (Third Party Insurance) Act (cap. 133) empowers third parties who have obtained a judgment against the insured to institute an independent action against the insurers on the basis of an insurance policy in force, the insurers' liability will not arise unless both the Act, and the terms of the policy have been ful­ filled; thus, where the driver of a car involved in an accident is unlicensed and therefore does not come within the definition of "person or classes of person" covered by the policy, there is a breach in the terms of the policy so that it cannot be considered to be in force, and the insurers are consequently not liable (page 349, line 26- page 350, line 16; page 350, line 38- page 351, line 1; page 378, line 15- page 379, line 6). [ 3] Insurance-motor vehicles-rights of third parties-Motor Vehicles (Third Party Insurance) Act (cap. 133), s.9 avoids as against third parties policy conditions excluding liability only where events precluding liability arise after accident: The proper interpretation of the Motor Vehicles (Third Party Insurance) Act (cap 133), s.9, is that all conditions in an insurance policy relating to an act or omission by the insured after an accident giving rise to a claim under the policy, which provide that, in those circumstances, no liability shall arise or that liability so arising shall cease, are of no effect against third parties; but a condition such as one excluding liability if the insured's vehicle is being driven by an un­ licensed driver, which relates to acts or omissions by the insured before the accident, remains effective (page 369, lines 1-26; page 372, lines 11-32). [ 4] Insurance-motor vehicles-unlicensed driver-Motor Vehicles (Third Party Insurance) Act (cap. 133), s.9 does not avoid policy condition excluding liability if driver unlicensed: See [ 3] above. [ 5] Insurance-policy-interpretation-courts must construe plain and unambiguous words in ordinary meaning, not so as to make reasonable contract for parties: It is the courts' function to construe policies of 336 ROYAL EXCHANGE,ASSUR. CO. LTD. v. BAZZY, 1972-73 ALR S.L. 336 S.C. insurance like other written instruments, that is, in such a way as to give plain and unambiguous words their ordinary meaning, not so as to make a reasonable contract between the parties which they have not made for themselves (page 353, lines 5-18). [ 6] Road Traffic-insurance-permitted driver-provision specifying per- 5 mitted drivers is condition for purposes of Motor Vehicles (Third Party Insurance) Act (cap. 133), s.9 but not avoided by that section: See [1] above. [ 7] Road Traffic-insurance-third party liability-Motor Vehicles (Third Party Insurance) Act (cap. 133), s.9 avoids as against third parties policy conditions excluding liability only where events precluding 10 liability arise after accident: See [3] above. [ 8] Road Traffic-insurance-third party liability-right of action against insurer-insurer liable to satisfy third party's judgment against insured only where Motor Vehicles (Third Party Insurance) Act (cap. 133) and terms of policy observed-breach of term of policy negatives insurer's 15 liability: See [2] above. [9] Road Traffic-insurance-unlicensed driver-Motor Vehicles (Third Party Insurance) Act (cap. 133), s.9 does not avoid policy condition excluding liability of driver unlicensed: See [3] above. [10] Statutes-interpretation-structure and parts of stature-long title­ may be used in interpretation only if words used in statute ambiguous: If the words used in a statute are ambiguous, the long title may be looked at to resolve the ambiguity; but if the words are plain and unambiguous, the long title may not be used to modify or control the meaning (page 374, lines 8-33). [ 11] Statutes-interpretation-structure and parts of statute-punctuation marks-may be used as aids in interpretation but not to override clear meaning of whole statute: Punctuation marks in a statute may be called in aid in construing the statute but they should not be allowed to over­ ride the clear and unambiguous meaning of a statute when read as a whole (page 366, lines 34-38). The respondent brought an action against the appellants in the High Court to recover a judgment debt arising out of proceedings by the respondent against a policyholder of the appellants. 20 25 30 The appellants insured the owner of a car in respect of any 3 5 liability for damages which might be incurred by him in respect of the death of or bodily injury to any person arising out of the use of the car. By the general exceptions in the insurance policy, the appellants were not liable in the event that a liability arose when an unlicensed driver was in charge of the car. The car was 40 involved in an accident as a result of which the respondent 337 THE AFRICAN LAW REPORTS sustained bodily injuries. At the time of the accident the car was being driven by one Sahr Kissi Kondewa, an unlicensed driver. The respondent brought an action for damages in the High Court against Kondewa and against the insured owner of the car. He 5 obtained judgment against them and notified the appellants accord­ ingly. The judgment remaining unsatisfied, he sued the appellants for the recovery of the judgment debt under s.11 of the Motor Vehicles (Third Party Insurance) Act (cap. 133). The appellants disputed liability on the ground that Kondewa was an unlicensed 10 driver and therefore the liability was not covered by the terms of the insurance policy. The respondent contended that whether Kondewa was a licensed or an unlicensed driver did not affect the appellants' liability to satisfy his claim since, under s.9 of the Act, all conditions in an insurance policy which sought to (a) prevent 15 liability from arising, and (b) avoid a liability which had arisen after an accident giving rise to a claim were of no effect against third parties. The High Court (Tejan, J.) gave judgment for the respondent. On appeal, the appellants contended that the exception clause 20 relating to the driver of the car was not a condition within the terms of s.9, but a classification of persons insured within the terms of s.7(1)(b) of the Act and that in any case s.9 related only to events after an accident giving rise to a claim under the policy. The Court of Appeal held that all conditions in an insurance policy, 25 whether relating to events occurring before or after the happening of the event giving rise to a claim were of no effect against third parties, and that an insurer was liable to satisfy a third party's judgment against the insured in respect of bodily injury arising out of the use of a motor vehicle irrespective of the terms of the 30 policy, especially since the Motor Vehicles (Third Party Insurance) Act was clearly passed for the protection and benefit of third parties using the highway, and it was the court's duty to give effect to the intention of the legislature. The appeal was dismissed. The proceedings in the Court of Appeal are reported at 1972··-73 35 ALR S.L. 103. On further appeal to the Supreme Court the appellants main­ tained that the Court of Appeal was wrong in law in its construc­ tion of ss.9 and 11 of the Act. They reiterated their contention that s.9 ought to be construed conjunctively -in other words, that 40 the phrases "any condition in a policy ... issued or given for the purpose of this Act providing that no liability shall arise under 338 ROYAL EXCHANGE ASSUR. CO. LTD. v. BAZZY, 1972-73 ALR S.L. 336 S.C. the policy" and "that any liability so arising shall cease in the event of some specified thing being done or omitted to be done" should both be controlled by the words "after the happening of the event giving rise to a claim under the policy." Conditions referring to events before an accident were not affected so that when the insured allowed an unlicensed driver to drive his car in breach of the terms of the policy, the appellants were not liable and the respondent not entitled to benefit arising out of an independent right of action against the appellants under s.ll of the Act. They further contended that a study of the whole Act clearly showed that it was not the intention of the legislature to render all conditions in insurance policies ineffective, as argued by the respondent, since the Act itself recognised that it was permissible to insert conditions in policies. The respondent relied on the dictum of the learned Chief Justice (Cole, C.J.) that s.9 should be construed disjunctively, thus negativing exclusion clauses referring to events before, as well as after, an accident. He further contended that under s.ll, so long as the statutory provisions in favour of an insured person whose liability was covered by a policy were fulfilled, the appel­ lants, as the insurers, were obliged to satisfy the judgment obtained by him against the insured. The appeal was allowed. Cases referred to: (1) Austin v. Zurich Gen. Ace. & Liab. Jns. Co. Ltd., [1945] K.B. 250; [1945] 1 All E.R. 316. (2) Bright v. Ash{old, [1932] 2 K.B. 153; (1932), 147 L.T. 74, applied. (3) Croxford v. Universal Ins. Co. Ltd., Norman v. Gresham Fire & Ace. Ins., [1936] 2 K.B. 253; [1936] 1 All E.R. 151. (4) John T. Ellis Ltd. v. Walter T. Hinds, [1947] K.B. 475; [1947] 1 All E.R. 337, distinguished. (5) Gray v. Blackmore, [1934] 1 K.B. 95; [1933] All E.R. Rep. 520, applied. - (6) Hardy v. Motor Insurers' Bureau, [1964] 2 Q.B. 745; [1964] 2 All E.R. 7 42, distinguished. (7) Hart v. Standard Marine Ins. Co. (1889), 22 Q.B.D. 499; 60 L.T. 649. (8) Herbert v. Railway Passengers Assur. Co. [1938] 1 All E.R. 650; (1938) 158 L.T. 417. 339 5 10 15 20 25 30 35 40 5 THE AFRICAN LAW REPORTS (9) Joel v. Law Union & Crown Ins. Co., [1908] 2 K.B. 863; (1908), 99 L.T. 712. (10) Jones v. Welsh Ins. Corp., [1937] 4 All E.R. 149; (1937), 157 L.T. 483. (11) Jubilee Ins. Co. v. Ombaka, 1972(1) ALR Comm. 200; [1972] E.A. 301. (12) New Gt. Ins. Co. of India, Ltd. v. Cross, 1965 ALR Comm. 449; [1966] E.A. 90, not followed. (13) Passmore v. Vulcan Boiler & Gen. Ins. Co. (1935 ), 154 L.T. 258. 10 (14) Pokua v. State Ins. Corp., [1973] 1 G.L.R. 335, followed. 15 20 25 30 35 (15) Revell v. London Gen. Ins. Co., (1934] All E.R. Rep. 744; (1934), 152 L.T. 258. (16) Rogerson v. Scottish Automobile & Gen. Ins. Co. Ltd., [1931] All E.R. Rep. 606; (1931), 146 L.T. 26. (17) Royal Exch. Assur. v. Owusu, 1965 ALR Comm. 391; [1965] G.L.R. 490. (18) Schuler v. Wickman Tools, [1974] A.C. 235; [1973] 2 All E.R. 39, dictum of Lord Morris of Borth-y-Gest applied. (19) Sesay v. White Cross Ins. Co. Ltd. (1961), 1 S.L.L.R. 162. (20) Sosu v. Royal Exch. Assur., 1970(3) ALR Comm. 13. (21) State Ins. Corp. v. Mansah, 1969(1) ALR Comm. 326. (22) Taylor v. Kenyon, [1952] 2 All E.R. 726; (1952), 96 Sol. Jo. 749. (23) In re Williams (Dcd.), 1964-66 ALR S.L. 511. Legislation construed: Motor Vehicles (Third Party Insurance) Act (Laws of Sierra Leone, 1960, cap. 133), s.3(1): The relevant terms of this sub-section are set out at page 342, lines 15-20. s.7(1)(b): The relevant terms of this sub-section are set out at page 342, lines 28-32. (3): The relevant terms of this sub-section are set out at page 367, lines 23-29. s.9: The relevant terms of this section are set out at page 343, lines 6-13. s.10: The relevant terms of this sub-section are set out at page 367, line 39 -page 368, line 25. s.11(1): The relevant terms of this sub-section are set out at page 347, lines 15-32. (2): The relevant terms of this sub-section are set out at page 3 76, line 39- page 377, line 34. 40 (5): The relevant terms of this sub-section are set out at page 34 7, lines 34-40. 340 ROYAL EXCHANGE ASSUR. CO. LTD. v. BAZZY,1972-73 ALR S.L. 336 S.C. Road Traffic Act, 1960 (8 & 9 Eliz. II, c.16), s.207(1): The relevant terms of this sub-section are set out at page 351, lines 11-28. Insurance (Motor Vehicles Third Party Risks) Act (Laws of Kenya, 1962, cap. 405), s.8: The relevant terms of this section are set out at page 366, lines 24-31. 5 C.N. Rogers- Wright, S.H. Harding and Basma for the appellants; Smythe, Q. C. Miss Taylor and Metzger for the respondent. BETTS, J .S.C.: This is an appeal from the Court of Appeal against the judgment 10 of that court (Cole, C.J., Cornelius Harding and Percy Davies, JJ.A.) confirming an award of Le9,490.41 (damages and costs) together with interest of 6% per annum from the date of the accident, July 14th, 1966 to August 21st, 1970 the date of judg­ ment. This action arose from a motor traffic case which started 15 in the Magistrate's Court, Kono, in which Sahr Kissi Kondewa was charged with several offences including driving a vehicle "without first obtaining a licence to do so." He pleaded guilty to that charge and was fined Le100 or three months' imprisonment in default. After Kondewa's conviction Toufic Bazzy, who was injured as a 20 result of the accident, brought an action for damages against one Sorie Mansaray, the insured, and the driver Kondewa in the High Court (then the Supreme Court). On the date of the accident July 14th, 1966, the vehicle WU 809 was insured with the Royal Exchange Assurance Co. Ltd. Judgment was given for the respon- 25 dent (then the plaintiff) in the sum of Le6,500 with costs which were taxed at Le2,990.41 and interest. The respondent notified the appellants (then the defendants) about the judgment against the insured and the driver. The judgment remaining unsatisfied, the respondent thereupon successfully sued the Royal Exchange 30 Assurance Co. Ltd. for the recovery of the judgment debt. The Royal Exchange Assurance Co. Ltd. appealed to the Court of Appeal which dismissed the appeal. It is against this decision that the Royal Exchange Assurance Company has appealed to this court. The appellants have argued that the Court of Appeal was 3 5 wrong in law in their construction of ss.9 and 11 of the Motor Vehicles (Third Party Insurance) Act (cap. 133). They have argued in effect that in the particular circumstances of the accident they were not obliged in law to satisfy the judgment in favour of the respondent. The Motor VehiCles (Third Party Insurance) Act 40 (cap. 133) (hereinafter referred to as "the Act") makes provision 341 THE AFRICAN LAW REPORTS for a third party who suffers death or injury as a result of a motor vehicle accident, or his dependants in the former case, to seek redress, if necessary in the courts of the land against the owner of the vehicle and/or an insurance company. The statute is entitled 5 ''An Act to make provision against third party risks arising out of the use of motor vehicles." The effect of the argument on behalf of the appellants is that on a proper interpretation of s.9 of the Act, the respondent should not have been caught by the condition contemplated by s.9 and 10 therefore ought to be outside the scope of the policy under this Act and not entitled to the benefits arising out of an independent right of action against the appellants' company contained in s.11(1 ). The Act provides in s.3(1) that- 15 " ... no person shall use, or cause or permit any other person to use a motor vehicle unless there is in force in relation to the user of the motor vehicle by such person or such other person, as the case may be, such a policy of insurance or such a security in respect of third party risks as complies with the 20 provisions of this Act." The Act imposes a criminal sanction for a contravention of this provision in order to impress the imperative and comprehensive character of its specific requirement. Imperative conditions are also set out in s.7(1)(a) and (b) of the Act; (a) provides that the 25 insurer must be approved by the President and (b), which is more immediately relevant to the issue, states that, for the purpose of this Act, the insurance policy must insure- ". . . such person or classes of person as may be specified in the policy in respect of any liability which may be incurred 30 by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of a motor vehicle covered by the policy." This is a mandatory statutory condition and I think it is relevant to point out here that impliedly the law empowers the insurers 35 to exercise a right of restricting the persons or classes of person they would cover. To achieve the purpose of the Act there are certain fundamentals necessary. Those outlined are: No motor vehicle is to be used on the highway without an insurance policy covering its use; the policy should be issued by a recognised 40 insurer; and a recognisable person or classes of person is to be covered by the policy. The policy required under the Act is not, 342 ROYAL EXCHANGE ASSUR. CO. LTD. v. BAZZY,l972-73 ALR S.L. 336 S.C. quite prudently, left exclusively with the insured and the insurers, some restraints being statutorily brought to bear on their normal capacity to contract. One of the conditions is set out in s.9 of the Act. It is of great moment in this case and I think it is necessary to set it out in extense. It states that- "any condition in a policy or security issued or given for the purposes of this Act, providing that no liability shall arise under the policy or security or that any liability so arising shall cease in the event of some specified thing being done or omitted to be done after the happening of the event giving rise to a claim under the policy or security shall, in respect of such liabilities as are required to be covered by a policy or security issued for the purpose of this Act, be of no effect." Counsel for the appellants strenuously argued against the inter- pretation given to this section by the Court of Appeal which held that any condition in a policy or security, whether considered as precedent or subsequent, if caught within the ambit of s.9, was of no effect. The judgment of the Court of Appeal went on to spell out the material portions of the section and ended with the words (1972-73 ALR S.L. at 109): "In other words, the section in my view embraces two separate and distinct types of conditions, namely, those which have the effect of negativing liability ab initio upon the breach of such a condition and those which make the negativing of the liability conditional upon the doing or omitting to do some specified thing after the happening of the event giving rise to a claim under the policy or security." Obviously the construction applied is disjunctive with each type of condition being independently "of no effect" and completely ignoring the appropriate time when that provision should take effect. It is important at this stage to enquire what effect such a con­ struction will have on ss.10 and 11(1) of the Act. Section 10 lists certain events which if included in a policy purporting to restrict the insurance of a person insured should be considered of no effect where a certificate of insurance has been issued. Section 11(1 ), while conferring a right on third parties to institute independent action against insurers, stipulates that that right can only be exercised after judgment is obtained against the insured. According to the construction referred to before, any condition in a policy of insurance will be absolutely void (and s.10 giving specified 343 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS exceptions would be unnecessary). If this construction were correct, s.11(1) would not have made it obligatory on insurers to satisfy a judgment only after a successful action against the insured. 5 Counsel for the appellant argued that the construction which ought to be given to s.9 should be conjunctive. The words- "Any condition in a policy or security issued or given for the purpose of this Act providing that no liability shall arise under the policy or security" and "that any liability so arising shall cease in the 10 event of some specified thing being done or omitted to be done," should be controlled by the words - "after the happening of the event giving rise to a claim under the policy or security." Con­ strued in this way one particular class of events, if included in the policy, will be avoided statutorily. That class of events is all 15 conditions arising "after the event giving rise to a claim." In point of time those conditions become operable only after the accident and have no reference to events occurring either before or contem­ poraneously with the event giving rise to the claim. There also appears grammatical support. Black's Law Dictionary, 20 4th ed., at 334 defines a comma as "a point used to mark the smallest structural division of a sentence, or a rhetorical punctu­ ation mark indicating the slightest possible separation in ideas of construction." As against similar legislation in Kenya and the United Kingdom the use of the comma in s.9 is most restrictive, 25 coming for the first time after the words "or security shall" suggesting not even the slightest separation in ideas or construction as conceivable in the Kenya and United Kingdom legislation. This view is supported by 2 McGillivray on Insurance Law, 5th ed., at 1010, para. 2080. It is stated (at 1011): "The words 'in the event 30 of some specified thing being done or omitted' apply to 'no liability shall arise' as well as to 'any liability so arising shall cease."' See Gray v. Blackmore (5). In the United Kingdom legislation there are three commas, whilst there are four in the Kenya legislation. For further support I make reference to the case 35 in the Court of Appeal, Ghana, of Pokua v. State Ins. Corp. (14 ). I borrow the words of Amissah, J.A., used in the course of his judgment, on the construction of s.B of their Act which is similar to s.9 of our Act. He stated ([1973] 1 G.L.R. at 379): "Hardy v. Motor Insurers' Bureau teaches us no more than 40 this, that where the user of the vehicle is covered by com­ pulsory insurance, a victim of an intentional criminal act may 344 ROYAL EXCHANGE ASSUR. CO. LTD. v. BAZZY, 1972-73 ALR S.L. 336 S.C. recover under the policy, even though the perpetrator of the act himself cannot as a matter of public policy take advantage of his act ... Hardy's case does not, and cannot be taken to, say that where the user is not covered, as it was not in the instant case, the third party can get at an insurance company 5 . . . Our duty in this case calls for the construction of an Act, not a non-existent agreement." [Emphasis supplied.] Further along he said (ibid., at 379-380): "There is, to my mind, no reason why the legislature should not choose to distinguish between conditions excluding 10 liability dependent on occurrences after an accident on the one hand and those where the occurrences are before that event takes place ... I am convinced that this simple distinc- tion determines the approach of s.8 of the Act [s.9 of our Act] to the issue. It should be remembered that though the 15 object of the Act as set out was to 'make provision for the protection of third parties against risks arising out of the use of motor vehicles, and for purposes incidental thereto,' it did not in fact provide a comprehensive cover for third parties in all cases." 20 In addition, 22 Halsbury 's Laws of England, 3rd ed., 372, para. 763 states: "Accordingly it was provided that certain conditions in the assured's policy were to be of no effect in relation to a claim by a person to whom an assured was under a compulsorily 25 insurable liability. The conditions to that extent avoided are any conditions providing that no liability shall arise, or that any liability which has arisen shall cease, in the event of some specified thing being done, or omitted to be done, after the occurrence of the event giving rise to the claim. If, therefore, 30 any admission of liability is made after an accident contrary to a condition in the policy, or if, contrary to a condition in the policy, proper notice of the accident is not given to the insurers, the injured party is not affected so far as his claim is concerned." [Emphasis supplied.] (Revell v. London Gen. 35 Ins. Co. (15) cited in support.) These references indicate that the construction given to s.38 of the Road Traffic Act, 1930 of the United Kingdom, which is similar to s.9 of our Act, tends to stress a continuity instead of a separation of ideas. In the circumstances it would seem to me more 40 appropriate in view of the logical - in terms of the relationship 345 THE AFRICAN LAW REPORTS and sequence of the provisions - grammatical and textual support that such a construction should be the one applicable to all and any conditions which relate to circumstances before the event giving rise to a claim. I am inclined to accept the reasoning and 5 construction founded upon it. Counsel for the respondent contended that with regard to s.9 the argument advanced by the appellant was that "Any condition in a policy issued," etc. was not a definition, but what it says­ a condition- and in that case would be caught by s.9. He relied 10 on the dictum of the learned Chief Justice in the instant case and the case of New Gt. Ins. Co. of India, Ltd. v. Cross (12) and particularly on the judgments of Newbold, V .-P. and Crabbe, J .A. He further argued that this section should not be given a narrow construction but one which will accord with the intention 15 of the legislature. With respect, I have already stated that I accept and adopt the reasoning advocated on behalf of the appellants and therefore I do not support the construction put on the section by the learned Chief Justice. It is my opinion that the construction advanced by 20 both Newbold, V .-P. and Crabbe, J .A. is substantially based on a complete disregard of the history of the development of the Insurance (Motor Vehicles Third Party Risks) Act (Laws of Kenya, 1962, cap. 405). It appears to me that the several United Kingdom Acts dealing with the problem -1930, 1934, 1946 and 1960- 25 constitute a gradual progressive improvement of the rights of third parties and corresponding incursions into the preserves of a sector of the commercial world. The several Acts are in fact an admission of the inadequacy in providing an omnibus set of legislation for the protection of third parties which will at one and the same time 30 afford a reasonable measure of contractual freedom for investors and those engaged in the business of insurance. It is obvious that those Acts are not absolute and in the nature of the circum­ scribing circumstances they cannot be. It also appears to me that so far there is some degree of dis- 35 inclination to grapple with the fundamental questions which arise. These are: "If the provisions for third party risks are not absolute in the sense that they cover every and any liability incurred by the use of motor vehicles on the highway, how far short are they from affording complete protection for third parties?" and "What 40 compensatory rights will be accorded insurance companies for their total surrender?" The answers, in my opinion, are matters for 346 ROYAL EXCHANGE ASSUR. CO. LTD. v. BAZZY, 1972-73 ALR S.L. 336 S.C. the legislature. The duty of the courts is to construe Acts as they find them and not to substitute their considered opinions for the intention of the legislature however deserving and humanitarian the cause may be. Having determined the construction of s.9 in this way I should 5 now proceed to examine s.ll(l) in order to discover to what extent, if at all, that section enures to the benefit of third parties. Counsel for the respondent in the course of his address in reply to counsel for the appellants observed that his learned friend did not attempt to construe s.ll(l) of the Act. In spite of the observation 10 he did not overreach himself in his own attempt to do so. He said however that to get at the real meaning of s.ll(l) it should be read together with sub-s. (5) of the same section. Reproduced, s.ll(l) says: "If after a certificate of insurance has been issued in favour 15 of a person by whom a policy has been effected or a certifi- cate of security has been issued in favour of the person whose liability is covered by such security judgment in respect of any such liability as is required to be covered by a policy or security issued for the purposes of this Act, being a liability 20 covered by the terms of the policy or security, is obtained against any person insured by the policy or whose liability is covered by the security, as the case may be, then, notwith­ standing that the insurer or the giver of the security may be entitled to avoid or cancel or may have avoided or cancelled 2 5 tp.e policy or the security, as the case may be, the insurer or the giver of the security shall, subject to the provisions of this section, pay to the persons entitled to the benefit of such judgment any sum payable thereunder in respect of the liability including any sum payable in respect of costs and 30 any sum payable by virtue of any law in respect of interest on that sum or judgment." Sub-section ( 5) says: "In this section - 'liability covered by the terms of the policy or security' 35 means a liability which is covered by the policy or the security, as the case may be, or which would be so covered were it not that the insurer or the giver of the security is entitled to avoid or cancel or has avoided or cancelled the policy or the security, as the case may be, ... " 40 To my mind s.ll(l) is extremely important; so important that 347 THE AFRICAN LAW REPORTS it can claim to be the focal point of the Act. Practically every functional aspect connected with the Act turns on it. For example, s.7(l)(b) ensures that "such person or classes of person as may be specified in the policy" must be insured against any liability 5 which may be incurred by him or them. The liabilities of course arise from the terms and conditions which together with other requirements constitute the aggregate of the policy. Section 7 (1 )(b) would therefore cover those liabilities in respect of the death or bodily injury caused by a designated person or designated 10 class of persons specified in the policy and whose vehicle is covered by the policy as well. It is however not unusual that despite this mandatory demand of the sub-section, some policies issued contain provisions limiting those to whom the privilege of the designation or class extends, thus attempting to frustrate the 15 intention of the Act. As a result, the courts have had to be resorted to in order to determine whether these exclusion clauses should be construed subject only to the intention of the Act or, when the occasion arises, independently of it. Some courts have favoured deciding that such exclusion clauses 20 should not frustrate the intention of the legislature, as in the case of New Gt. Ins. Co. of India, Ltd. v. Cross (12), while others have approached it as a simple contractual arrangement between the parties. There are two cases from Ghana holding the latter view. This state of uncertainty is very disturbing especially as it vitally 25 affects the rights of the innocent third party. There is no doubt that the legislature has done practically everything to protect him from the wiles of the insurers but the calamity which could befall him could, as in this case, come from the other end of the spec­ trum - the insured, and be generated by, one could say, a not 30 unnatural human factor. Section 11(1) also contemplates other provisions contained in the Act and fuses all the various elements to make them function. The section makes reference to the Act in relation to the satis­ faction of a judgment. It speaks of - " ... the person whose 35 liability is covered by such security, judgment in respect of any such liability as is required to be covered by a policy or security issued for the purposes of the Act." The section then goes on to the liability covered by the terms of the policy and also refers to those matters which are "subject to the provisions of this 40 section." The liability which is required to be covered by a policy or security issued for the purposes of the Act and that covered 348 ROYAL EXGHANGE ASSUR. CO. LTD. v. BAZZY,1972-73 ALR S.L. 336 S.C. by the terms of the policy are both subject to provisions of avoid­ ance and cancellation. The similarity, however, ends there. Liability arising under the provisions of the Act is fixed and unalterable, except of course by legislation, and avoidance or cancellation is generally applicable. A liability which arises under 5 the terms of the policy, on the other hand, would necessitate a distinction between a liability to which the words "subject to the provisions of this section" do not apply and that to which the words "subject to the provisions of this section" do apply. We find that whenever a liability arising under the policy to 10 which the words "subject to the provisions of this section" apply, such a liability could be avoided or cancelled. Where, for instance, some arrangement is made between the insured and the insurer by which the jurisdiction of the court to enforce the rights conferred on third parties by this section is ousted, such agreement, being in 15 violation of the provisions of the section, could be declared void. The court has a duty to satisfy judgments obtained by persons duly insured against third party risks. Any condition, therefore, contained in a policy, precluding a third party from obtaining a judgment by the court for injury or death suffered, would be 20 liable to be avoided or cancelled and could even be avoided or cancelled if the agreement had taken effect. On the other hand, we find some claims giving rise to liabilities not caught within the scope of this section which though they are made on a party and party basis are not restricted by the section but are allowed to be 25 construed in the same way as any ordinary contract. I am of opinion that though s.ll(l) empowers the third party, as distinct from the insured, to institute an independent action, this right is subject to conditions already stated which impose a reasonable amount of restriction on the exercise of the right. If there is no 30 limit in any manner as to how the vehicle is used, or in other words if there is no condition governing the kind of liability which might arise out of the use of the vehicle as there was in the case of In re Williams (Dcd.) (23) in which Sir Samuel Bankole Jones, P. held that the Caledonian Insurance Company was not liable where 3 5 the driver was driving outside the scope of his employment as con­ tained in the policy, the liability of the insurer would be inescap- able. This to my mind is obviously not the intention of the section which seeks to provide order and not chaos in the community. It was conceded by both sides that a certificate of insurance was 40 in fact issued to the insured although it was not produced at the 349 .· ' .. · ' .. . , ' . . .~ ·· .... THE AFRICAN LAW REPORTS trial. There is no contention on that point. A judgment has also been obtained against the insured and the usual notification given to the insurers. Those conditions having been satisfied the third party under the Act has acquired an independent right of action 5 against the insurers. The appellants have argued, quite rightly in my opinion, that before a liability for which a judgment has been obtained arising under this section can be sustained, two con­ ditions in the nature of conditions precedent must be fulfilled: (a) satisfaction of the conditions as required by the Act; (b) satis- 10 faction of the conditions or terms of the policy. While sub-s.11(1) highlights the conditions under the statute, sub-s.11(5) stresses those under the policy by defining them. It appears to me that this distinction advocated above by the appellants is inherent in the Act and much difficulty might have been avoided by looking at 15 the Act itself. The case of Sesay v. White Cross Ins. Co. Ltd. (19) was cited in support of this proposition. It was further urged that this section should be read together with s. 7 (1 )(b) to ascertain those who are covered by the policy. The case of Jubilee Ins. Co. v. Ombaka (11), based on ss.8 and 10 20 of Kenya's Insurance (Motor Vehicles Third Party Risks) Act (cap. 405), reveals that the provisions of those sections are similar to our ss.9 and 11 respectively. In the course of his judgment Farrell, J. supported the proposition advocated by the appellants. He said (1972(1) ALR Comm. at 206; [1972] E.A. at 303): 25 "Such being the facts, the issues which arise fall to be decided in the light of the construction to be given to the terms of the policy and to the provisions of the Act." [Emphasis supplied.] In that case obtaining a judgment, as under s.11(1) of our Act, is a pre-condition to the settlement of any liability which might 30 arise under the Act. The plaintiffs . settled the claim without a judgment having been obtained when there was no compulsion on them to pay the third party and the plaintiffs had no right under the policy to settle the third party's claim after repudiating liability to the defendant. I would draw particular attention to the 35 ultimate portion of the headnote, which states that "the plaintiffs had no right under the policy to settle the third party's claim after repudiating liability to the defendant." [Emphasis supplied.] The appellants in this case have consistently denied liability on the ground that the insured was in breach of a term of the 40 policy. According to the construction which I have placed on s.11(1) and (5) the conditions in the policy vis-a-vis the parties 350 -- ~r:o-L"', r I\• '- A.1 ' I'-" ··\\ I v lKlf;';,. 1.) ~ I · i .•, )r.i/ Jij::-}, ROYAL EXCHANGE ASSUR. CO. LTD. v. BAZZY,1972-73 ALR S.L. 336 'S. \ ~>·/~/ ~i/ \ <" '·y /'. -l< S.C. \.·}~"":--- .~~ "-·1'-:,r~-..f ./ ' .. / must be complied with. Counsel for the respondent submitted that ~ -- ... this court should adopt a policy which would compel the insurers to satisfy a judgment if a certificate of insurance had been delivered to a person by whom a policy was effected when judgment, as required for a liability covered under s.205 of the United Kingdom 5 Road Traffic Act, 1960 had been obtained. The authority he cited was Ivamy, Fire and Motor Insurance, at 301-302 (1968). Counsel for the respondent also submitted that because of the similarity between s.11(1) of our Act and s.207(1) of the United Kingdom Road Traffic Act, 1960 which reads: 10 "If, after a certificate of insurance or certificate of security has been delivered under section two hundred and five of this Act to the person by whom a policy has been effected or to whom a security ha.S been given, judgment in respect of any such liability as is required to be covered by a policy of 15 insurance under section two hundred and three of this Act (being a liability covered by the terms of the policy or security to which the certificate relates) is obtained against any person who is insured by the policy or whose liability is covered by the security, as the case may be, then, notwith- 20 standing that the insurer may be entitled to avoid or cancel, or may have avoided or cancelled, the policy or security, he shall, subject to the provisions of this section, pay to the person:s entitled to the benefit of the judgment any sum payable thereunder in respect of the liability, including any 25 amount payable in respect of costs and any sum payable in respect of interest on that sum by virtue of any enactment relating to interest on judgments,'' -this court should satisfy the judgment. In the United Kingdom, however, there is in active operation the Motor Insurers' Bureau 30 which, though not a statutory body, provides an alternative and mollifies the harshness that could be the result of a strict inter­ pretation of s.207 (1) of the United Kingdom Road Traffic Act, 1960. As we have no provision whatsoever acting as a palliative in this respect, the insured may sometimes be exposed to the in- 35 flexibility of the construction which could be put on s.11(1) of our Act. Kenya and Ghana suffer the same disability as Sierra Leone because none of us enjoy the coverage offered by the Motor Insurers' Bureau of the United Kingdom. Our legislation (in the three states mentioned) dealing with third party risks, 40 emanates from the same source and is similar in each state and 351 THE AFRICAN LAW REPORTS similar to the original. Sections 8 and 10 of the Insurance (Motor Vehicles Third Party Risks) Act (cap. 405) of Kenya and ss.6 and 10(1) of the Motor Vehicles (Third Party Insurance) Act, 1958 of Ghana are similar to our ss.9 and 11(1 ). I have already referred 5 to the case of Jubilee Ins. Co. v. Ombaka (11) in which it was held that the "plaintiffs had no right under the policy to settle after repudiating liability to the defendants." In Ghana Amissah, J.A. in his judgment in the case of Pokua v. State Ins. Corp. (14) cited State Ins. Corp. v. Mansah (21). He said in the course of his 10 judgment ([1973] 1 G.L.R. at 384): " ... the liability must in fact be covered by the terms of the insurance policy but for the fact that the insurers may be entitled to avoid or cancel or may have avoided or cancelled the policy. . . . If though the liability is one which should be covered by insurance it is not in fact so 15 covered no insurance company is liable." The passages of the decisions referred to do support the submission advocated by counsel for the respondent. In further support of his argument he again referred to the case of New Gt. Ins. Co. of India, Ltd. v. Cross (12) and cited the case 20 of John T. Ellis v. Hinds ( 4) to establish that his submission is and has been for some time in the past viewed with approval by the court. In my view that case has not a complete applicability to the instant case. The dominant considerations in that case were the criminal aspect and the application of constructive knowledge. 25 In the instant case the question is whether or not the policy covered a driver not holding a current driving licence. The user of the vehicle was never a point of contention as it was in the case cited. I am of opinion that where a policy has been obtained covering the use of a vehicle on the highway, prudence would 30 dictate that the insured, having determined the manner in which he intends to use his vehicle, should take out a policy to cover that particular use. Branson, J. observed in Gray v. Blackmore (5) ([1934] 1 K.B. at 107-108; [1933] All E.R. Rep. at 526): "I see nothing in the statute which prevents an underwriter 3 5 and an assured from agreeing to a policy with any conditions that they choose; but if the assured takes the car upon the road in breach of those conditions he cannot thereby throw a greater obligation upon the underwriter." To my mind the construction which the respondent seeks to put 40 on s.11 that, if the statutory provisions in favour of a person whose liability is covered by a policy or security for the purposes of this 352 RO~AL EXCHANGE ASSUR. CO. LTD. v. BAZZY,1972-73 ALR S.L. 336 S.C. Act, already referred to, are satisfied the insurers are obliged to make payment for that judgment together with costs and inci­ dentals, cannot be maintained. 1 McGillivray on Insurance Law, 5th ed., at 340 para. 702 (1961) states: "Policies of insurance are to be construed like other written 5 instruments. There are no peculiar rules of construction applicable to the clauses and conditions in a policy which are not equally applicable to the terms of other contracts. The conditions are to be construed fairly between the parties, and the court will endeavour to ascertain their meaning by 10 adopting the ordinary rules of construction." See Hart v. Standard Marine (7). 22 Halsbury 's Laws of England, 3rd ed., at 212, para. 401 reads: "It is not the flinction of the court to make for the parties, 15 by a process of construction, a reasonable contract which they have not made for themselves. If the words are clear, precise and unambiguous, effect must be given to them, however unreasonable the result may be." It cites the case of Joel v. Law Union and Crown Ins. Co. (9) 20 in support. Bearing these basic requirements in mind I observe that four conditions emerge as a result of the construction of the Act. By condition I mean whatever the Act requires and whatever is agreed between the parties as being incorporated in the policy. They are: 25 (1) The conditions contemplated by s.9 of the Act, that is, liability arising after an event giving rise to a claim, excluding con­ ditions precedent or contemporaneous. (2) Conditions void ab initio arising under s.10 of the Act, which restrict but do not avoid the policy. 30 (3) Conditions in the policy which are not caught by (1) and (2). These are those conditions which the law does not preclude from being made on a party and party basis and not subject to the provisions of s.11(1), including conditions precedent or contem- poraneous. 35 ( 4) Conditions which are inter-party and suject to the provisions of s.11(1) and may be conditions precedent or contemporaneous. The provisions contained in (1), (2) and (4) above have been exam­ ined. Those coming under condition (3) will now be considered. The- policy produced at the trial, Exhibit B, prepared in the 40 usual form, contains, as part of the policy and which comes under 353 THE AFRICAN LAW REPORTS (3) above, a schedule with a proviso stating who is a driver. A driver therein is "(a) The insured; the insured may also drive a motor car not belonging to him and not hired to him under a hire purchase 5 agreement. (b) Any other person who is driving on the policy­ holder's order or permission- provided that the person driving is permitted in accordance with the licensing or other laws or regulations to drive the motor car or has been so per­ mitted and is not disqualified in that behalf from driving such 10 motor car." Counsel for the respondent argued that the provision of a dis­ qualification having been included in the exclusion clause in the policy all the various alternatives must be proved before the avoid­ ance could come into operation. This is a point which has arisen 15 ex improviso and was taken at the latest possible stage of the pro­ ceedings. It could have been canvassed at an earlier stage of the proceedings but even then I am inclined to doubt its efficacy in the civil sector. What to my mind is important is that up to the Supreme Court stage the case had been fought on the basis that 20 the driver was unlicensed; a fact which had been conceded by counsel for the respondent himself. It is significant that the attitude adopted by counsel for the respondent both at the High Court and Court of Appeal was that there was no contention that the driver was unlicensed and I would think that it is not only too 25 late to change stance before the Supreme Court but rather unfair to all concerned. What is commonly referred to in policies as an avoidance clause is usually found in that portion where the law does not forbid an exercise of contractual freedom between the parties, that is 30 under condition (3) referred to above. As a result of the inter­ pretation given by me to s.9 of the Act, I have excluded as appli­ cable any condition which gives rise to a liability either precedent to or contemporaneous with an event not happening after the occurrence which gives right to a claim. It is however necessary, 35 again, in relation to this construction, to refer to the case of New Gt. Ins. Co. of India, Ltd. v. Cross (12) in '"'Which both Newbold, V.-P. and Crabbe, J.A. gave a wide interpretation to - "any condition in a policy or security issued or given for the purposes of this Act, providing that no liability shall arise under 40 the policy or security ... " as being independent of the qualifying phrase "after the happening of the event giving rise to a claim .... " 354 ROYAL EXCHANGE ASSUR. CO. LTD. v. BAZZY.1972-73 ALR S.L. 336 S.C. The effect of such a construction was to give efficacy to "any condition" which would in fact include the avoidance clause and render the insurance company liable even though the driver was unlicensed. That case originally came up for hearing in Nairobi on June 5 17th and 18th and July 30th, 1965. Crabbe, J.A. was then uncom~ promising in his attitude. He said (1965 ALR Comm. at 464- 465; [1966] E.A. at 100): "I agree with the conclusion of the learned Vice-President, but as there is a difference of opinion among us on a matter of such public importance, I feel I ought 10 to state my reasons in my own words." What he says next is very important. "The sole question turns entirely on the exception clause in the policy." He concluded by saying (ibid., at 471; 104): "Therefore, since the use of the car on the road in the 15 particular circumstances of this case was a user covered by a policy of insurance in respect of third party risks which com- plied with the requirements of the Insurance (Motor Vehicles Third Party Risks) Act, I think that the relevant exception clause does not relieve the defendant company from the 20 liability of satisfying a claim brought under s.lO(l) of the Act." There is no doubt that the use of a vehicle insured under the Act is almost sacrosanct but it is, in my view, amazing that conditions governing that use can be so consistently overlooked as a result of 25 our s.ll(l). What is most significant is the complete change of attitude of Crabbe, J.A., who in 1971 had become Acting Chief Justice in Ghana. This change of attitude is manifested in the decision of the Court of Appeal, Ghana in the case of Sosu v. Royal Exch. Assur. 30 (20). The plaintiffs were passengers on a bus travelling from Manpong to Kumasi. The trial judge found the second defendant, who was the driver of the said vehicle, negligent- that he drove too fast in the middle of the road. On seeing a vehicle coming from the opposite direction the driver, one Kwame Ampofo, 35 swerved suddenly and applied his brakes. The vehicle as a result ran off the road and landed in a ditch. The two plaintiffs were injured. The first defendant in that suit was the owner of the vehicle. Judgment was given against the first and second defen­ dants jointly and severally. The first plaintiff was awarded damages 40 1n the sum of (tl,200 and the second plaintiff (t2,400. By an 355 THE AFRICAN LAW REPORTS originating summons brought under s.10(1) of the Motor Vehicles (Third Party Insurance) Act, 1958 the plaintiffs/respondents sought to recover the damages awarded by the court from the defendants/appellants as insurers of the bus in question. There 5 was an agreement for the hire-purchase of this vehicle between one Kwasi Addae who was insured with the defendants/appellants and one Kwame Ampofo. The purchase price had been paid less £10. The defendants/appellants did not know of this agreement, neither did they know of, or have any contractual relationship with, 10 Ampofo. Under the policy the only person entitled to drive was K wasi Addae. The insurers repudiated liability and said that they were responsible only when K wasi Addae was driving. The court held that the plaintiffs/respondents could recover under the policy only when Kwasi Addae was driving and referred to Herbert v. 15 Railway Passengers Assur. Co. (8). The court went on to point out that the learned trial judge failed to consider that the owner's right under the policy ceased once the vehicle, which was the subject-matter of the policy, was sold and referred to Rogerson v. Scottish Automobile and Gen. Ins. Co. Ltd. (16). The judges who 20 sat on that case were Crabbe, Ag. C.J., Lassey, J.A. and Jiagge, J.A. The decision was unanimous and as far as Crabbe, Ag. C.J. was concerned his outlook had completely reversed. 2 McGillivray on Insurance Law, 5th ed., at 1001 (1961) put the position very clearly at para. 2065 as follows: 25 "Motor-vehicle policies frequently contain clauses restricting the liability of the insurers in various ways, e.g., the indemnity afforded may be limited by reference to the driver of the vehicle or to the purposes for which it is used. After some conflict of judicial opinion it has now become clear that such 30 a policy complies with the Act pro tanto; that is to say, that provided that the liability insured against is that specified by the Act, the vehicle may lawfully be l.ised within the limits laid down by the policy, although an offence will be com­ mitted by anyone who uses it, or causes or permits it to be 35 used, outside those limits." The portion I would like to stress is: "provided that the liability insured against is that specified by the Act, the vehicle may law­ fully be used within the limits laid down by the policy." In the course of his judgment in Pokua v. State Ins. Corp. (14 ). 40 Amissah, J.A. cited the recent cases of Royal Exch. Assur. v. Owusu (17) and State Ins. Corp. v. Mansah (21) both of which 356 ROYAL EXCHANGE ASSUR. CO. LTD. v. BAZZY, 1972-73 ALR S.L. 336 S.C. I have not had the privilege of reading, and Sosu v. Royal Exch. Assur. (20). The appellant in an action for damages against one Bandoh had obtained judgment for ~2,600. At the time he had an insurance policy issued by the respondents, the State Insurance Corporation, covering the use of the vehicle. The appellant, as in 5 this case, sued the respondents for the payment of the ~2,600 awarded against Bandoh. The respondents disclaimed liability on the ground that the vehicle was being driven at the time of the accident by some person other than Ban doh's driver, K warne Amoah, who was the named driver in the policy. Judgment was 10 given by the Circuit Court for the respondents. The point at issue was that the policy was inoperative if the term naming a driver was not observed. In the Court of Appeal, Ghana, as against the judgment of Bentsi-Enchill, J.S.C., both Amissah, J.A. and Sowah, J .A. confirmed the decision of the Circuit Court. In the instant 15 case there has been a breach of a term included in the schedule to the policy by permitting an unlicensed driver to be the driver of vehicle WU 809 at the time when the accident occurred; and which gave rise to the liability the subject-matter of this claim. In the case of Pokua v. State Ins. Corp., the court held that the 20 policy involved was rendered inoperative as the vehicle was being driven at the time of the accident by some person other than Bandoh 's driver K warne Amoah who was the named driver in the policy. In the Pokua case and also in the instant case the under- lying principle is that a breach of an exclusion or exception clause 25 had occurred resulting eventually in an action in each case. As a result of the breach in the Pokua case the policy was declared inoperative. I am of opinion that that decision should be followed in this case and my opinion is further strengthened by the decisions in the cases of Revell v. London Gen. Ins. Co. (15), Taylor v. 30 Kenyon (22) and Passmore v. Vulcan Boiler & Gen. Ins. Co. (13). The appellants are urging this appeal on the ground that the award to the respondent of damages, costs and interest amounting to Le9,490.41 was wrong because the insured was in breach of a term of the policy by allowing an unlicensed driver to drive 35 vehicle WU 809 which was involved in an accident as a result of which Toufic Bazzy was injured. I agree and for reasons already stated I would allow the appeal, and reverse the judgment of the court below with costs in this court and the courts below to be taxed against the respondent. 40 I would wish to observe that this is no indication of lack of 357 5 10 15 20 25 30 35 40 THE AFRICAN LAW REPORTS sympathy or even of harshness towards the respondent. It is my opinion that no legislation, however generously devised, can pro­ vide total and absolute protection for third parties. The insurance business is one which is characterised considerably by the element of chance. When once that element is removed by the introduction of an Act which is absolute, then the whole exercise becomes nugatory and the humanitarian service which the legislature intends to provide will be completely destroyed. This, I think, is the con­ clusion arrived at in the United Kingdom where the Motor Insurers' Bureau has been created to relieve hardship in the nature of that which has currently engaged the attention of our Supreme Court. I do not think it can be over-emphasized that if the present position requires improvement the remedy lies with the legislature and not the judiciary. BRIDGES, C.J. (Gambia) concurred with the judgment of BETTS, J.S.C. LUKE, J.S.C.: The issues raised in this appeal are of considerable importance to insurers, insured and the general public. The appellant company are approved insurers for the purposes of the Motor Vehicles (Third Party Insurance) Act (cap. 133) (hereafter referred to as "the Act"). One Sorie Mansaray insured his motor car WU 809 (hereafter referred to as "the car") with the appellants for the period from December 6th, 1965 to December 5th, 1966 against, inter alia, "accident caused by or arising out of the use of the motor car against all sums including claimants costs and expenses which the insured shall become legally liable to pay in respect of death of or bodily injury to any person." The terms and conditions of the insurance were set out in a policy of insurance dated January 4th, 1966. The car was involved in an accident in Koidu Town, Kono, on July 14th, 1966 as a result of which Toufic Bazzy, the respondent, sustained bodily injuries. At the time of the accident the car was being driven by one Sahr Kissi Kondewa. It is agreed by both parties that at the time of the accident Sahr Kissi Kondewa was an "unlicensed driver." On April 30th, 1968 the respondent instituted proceedings against Sorie Mansaray and Sahr Kissi Kondewa, claiming damages for the injuries sustained in the accident and on August 21st, 1970 the High Court gave judgment in favour of the respondent for Le6,500 damages and costs which were later taxed at Le2,990.41. Having 358 ROYAL EXCHANGE ASSUR. CO. LTD,. v. BAZZY,1972-73 ALR S.L. 336 S.C. failed to recover the judgment debt from Sorie Mansaray and Sahr Kissi Kondewa, the respondent issued a writ of summons against the appellants on June 22nd, 1971 claiming the judgment debt plus interest. In their defence, the appellants disputed liability on the ground that Sahr Kissi Kondewa was an "unlicensed driver" 5 and therefore the liability was not covered by the terms of the policy. The action was tried by Tejan, J. (as he then was). The learned judge gave judgment for the respondent and he gave what appears to be a summary of his reasons at the end of his lengthy judgment. He said: 10 "In the present case, the driver had no driving licence but at the time he drove the vehicle which injured the plaintiff, there was a policy of insurance which covered the use of the vehicle. Since the use of the vehicle in the particular circum- stances of this case was a user covered by a policy of insurance 15 in respect of third party risks which complied with the requirements of the Motor Vehicles (Third Party Insurance) Act (cap. 133) (an ordinance to make provision against third party risks arising out of the use of motor vehicles) and following the principles in the authorities cited and particu- 20 larly the case of New Gt. Ins. Co. of India Ltd. v. Cross. I think that the exception clause in the schedule of Exhibit B , [i.e., the insurance policy] does not relieve the defendant company from the liability of satisfying the claim under s.ll of cap. 133." 25 The appellants appealed to the Court of Appeal against the decision of Tejan, J. The appeal was heard by the Court of Appeal (Cole, C.J., Cornelius Harding and Percy Davies, JJ.A.) and judg­ ment was delivered on May 19th, 1972 dismissing the appeal. The judgment was delivered by the learned Chief Justice and the other 30 two justices agreed with him. The Court of Appeal held that at the time of the accident the car was being driven by a person (Sahr Kissi Kondewa) "caught within the ambit of the proviso to the definition of 'Driver' in the schedule to Exhibit B in that the driver was an unlicensed 35 driver," but that the proviso was a condition, that s.9 of the Act inter alia rendered "any condition in a policy providing that no liability shall arise under the policy" of no effect, that the proviso was such a condition and therefore the proviso was of no effect. Put succinctly, the Court of Appeal said in effect that although 40 Sahr Kissi Kondewa was caught by the proviso, yet the appellants 359 THE AFRICAN LAW REPORTS could not rely on the proviso to repudiate liability because the proviso was a condition rendered of no effect by s.9 of the Act. The important issues in this appeal may be summarized thus: (i) Whether all conditions in a policy of insurance, whether 5 relating to events occurring before or after the happening of the event giving rise to a claim under the policy, for death or bodily injury caused by or arising out of the use of the motor vehicle covered by the policy, are of no effect as against third parties. 10 (ii) Whether a third party claimant against an insurer for the recovery of a judgment debt obtained against the insured in respect of death or bodily injury caused by or arising out of the use of a motor vehicle covered by the policy which also covers liability in respect of death 15 or bodily injury, is entitled to succeed irrespective of the terms of the policy. Compulsory third party insurance of motor vehicles was intro~ duced in Sierra Leone in 1951. The legislation introducing it, the Motor Vehicles (Third Party Insurance) Act (cap. 133), was passed 20 in 1949 but it did not come into force until April 1st, 1951. The Act incorporated certain provisions of two British Acts of Parlia~ ment, i.e., the Road Traffic Act, 1930 and the Road Traffic Act, 1934 (hereinafter referred to as "the 1930 Act" and "the 1934 Act" respectively). The answer to the first question formulated 25 above turns on the construction of s.9 of the Act, which is in the following terms: "Any condition in a policy or security issued or given for the purposes of this Act providing that no liability shall arise under the policy or security or that any liability so arising 30 shall cease in the event of some specified thing being done or omitted to be done after the happening of the event giving rise to a claim under the policy or security shall, in respect of such liabilities as are required to be covered by a policy or security issued for the purposes of this Act, be of no effect: 35 Provided that nothing in this section shall be so construed as to render void any provision in a policy or security requiring the person insured or secured to repay to the insurer or the giver of the security any sums which the insurer or the giver of the security may have become liable to pay under 40 the policy or the security and which have been applied to the satisfaction of the claims of third parties." 360 ROYAL EXCHANGE ASSUR. CO. LTD. v. BAZZY, 1972-73 ALR S.L. 336 S.C. This section is substantially the same as s.38 of the 1930 Act. The material difference between the two sections is that in the British section there are commas after the word "Act" where it first appears and after the word "cease." The contention of the respondent is that the provision in the 5 policy, that liability shall only be covered by the policy if the car was being driven at the time of the accident by the insured or by a driver as defined in the policy, is a condition rendered of no effect by s.9 of the Act. According to this argument, all conditions in a policy are rendered of no effect by the section. On the other 10 hand it was argued by counsel for the appellants that in the first place the said provision relating to the driver of the car was not a condition within the terms of s.9 but a classification of persons insured within the terms of s. 7 (1 )(b) of the Act and that, in any case, s.9 of the Act related only to a thing done or omitted to be 15 done after the happening of the event giving rise to a claim under the policy. The question then arises, is the provision relating to the driver of the car a condition? It is provided in Section III of the policy under the heading "General Exceptions" that: 20 "The company shall not be liable under this policy in respect of (1) .. . (2) .. . (3) any accident loss or damage and/or liability caused sus- 25 tained or incurred whilst any motor car in respect of or in connection with which insurance is granted under this policy is (a) ... (b) being driven by any person other than a driver." 30 It is also provided in Section II (headed ''Liability to third parties"), cl.3 as follows: "In terms of and subject to the limitations of the indemnity which is granted by this section to the insured the company will indemnify any driver who is driving the motor car on 35 the insured's order or with his permission provided that such driver- (a) is not entitled to indemnity under any other policy; (b) shall as though he were the insured observe fulfil and be subject to the terms exceptions and conditions of this 40 policy in so far as they can apply." 361 THE AFRICAN LAW REPORTS And "driver" is defined in the schedule (which, it is not disputed, forms part of the policy) as follows: "Any of the following~ (a) The insured. 5 The insured may also drive a motor car not belonging to him and not hired to him under hire-purchase agreement. (b) Any other person who is driving on the policy holder's order or with his permission. Provided that the person driving is permitted in accor- 1 0 dance with the licensing or other laws or regulations to drive the motor car or has been so permitted or is not disqualified by order of a court of law or by reason of any enactment or regulation in that behalf from driving such motor car." 15 I shall deal first with Mr. Rogers-Wright's argument relating to classification and for that purpose it is necessary to set out the relevant provisions of s. 7 (1) of the Act. The relevant part of the section, which is copied from s.36 of the Road Traffic Act, 1930, reads: 20 ''A policy of insurance for the purposes of this Act must be a policy which - (b) insures such person or classes of person as may be speci­ fied in the policy in respect of any liability which may be 25 incurred by him or them in respect of the death of or bodily injury to any person caused by or arising out of the use of a motor vehicle covered by the policy." Mr. Rogers-Wright's argument is that the provision in the policy (including the schedule) relating to the driver of the car merely 30 specifies the "person or classes of person" insured within the meaning of s.7(1)(b) and is not a condition. Quite clearly the "person or classes of person" insured by the policy are (a) the insured and (b) any other person who is driving on the policy holder's order or with his permission, provided that that person 35 is not caught by the restrictions laid down in the proviso to the definition of "driver" clause. And the liability covered by the policy, according to Section II, cl.l of the policy includes "liability in respect of death of or bodily injury to any person" in the event of accident caused by or arising out of the use of the motor car, 40 which in my judgment is the liability required to be covered by s.7(1)(b) of the Act. I agree therefore that the combined effect 362 ROYAL EXCHANGE ASSUR. CO. LTD. v. BAZZY.1972-73 ALR S.L. 336 S.C. of the clause headed "General Exceptions" quoted above, Section II, cl.3, the definition of "driver" in the schedule to the policy and Section II, c1.1 of the policy, is to specify the person or classes of person insured by the policy, to use the words of the sub- section, "in respect of the death of or bodily injury to any person 5 caused by or arising out of the use of the motor vehicle." But that is not the end of the matter, because to say that a provision in a policy specifies the "person or classes of person" insured by the policy does not mean that that provision is not a condition of the policy. Mr. Rogers-Wright defined a condition as 10 "a term of a contract which qualifies a primary obligation," and submitted that the provision in the policy specifying the "person or classes of person" insured does not qualify the primary obli­ gation under the policy and therefore that provision is not a con- dition. I do not think that it is necessary to go into the question 15 of whether or not the provision "qualifies the primary obligation," because in my opinion the definition of "condition" urged by Mr. Rogers-Wright is too restrictive. I agree that "condition" is some- times used in that sense, but it is frequently used in a less restrictive sense. In the recent case of Schuler v. Wickman Tools (18) Lord 20 Morris of Borth-y-Gest said ([1974] A.C. at 256; [1973] 2 All E.R. at 49): "Just as the word 'warranty' may have differing meanings according to the context so may the word 'condition.' The words 'condition precedent' may have a specific meaning. 25 But the 'conditions' of a contract may be no more than its terms or provisions. A condition of a contract may according to the context be a term of it or it may denote something to be satisfied before the contract comes into operation or it may denote something basic to its continuing operation." 30 I think that that is the right approach and I adopt it. In my opinion, the word "condition" in s.9 of the Act means no more than a "term" or a "provision" of the policy. Viewed in this light, the provision in the policy relating to the driver is, in my opinion, a condition. It is a condition specifying the "person or classes of 35 person" insured by the policy. I now turn to the question whether or not s.9 of the Act renders all conditions in a policy ineffective or affects only conditions relating to acts done or omitted to be done "after the happening of the event giving rise to a claim under the policy." The Court of 40 Appeal construed the section disjunctively and held that the 363 THE AFRICAN LAW REPORTS section rendered all conditions in a policy of no effect as against a third party. The learned Chief Justice who delivered the judgment said, inter alia (1972-73 ALR S.L. at 108): "This brings me to a consideration of s.9 of the Act. In 5 construing this section I think it is immaterial whether a condition falling within its ambit is precedent or subsequent; for, whether it is precedent or subsequent, so long as it is caught within the ambit of that section it is of no effect ... Let me now spell out the way I read the material portions 10 of s.9 of the Act. I read them in this way: Any conditions in a policy or security issued or given for the purposes of this Act providing - (i) that no liability shall arise under the policy or security; (ii) that any liability arising under the policy shall cease in 15 the event of some specified thing being done or omitted to be done after the happening of the event giving rise to a claim under the policy or security. In other words, the section in my view embraces two separate and distinct types of conditions, namely, those 20 which have the effect of negativing liability ab initio upon the breach of such a condition and those which make the negativing of the liability conditional upon the doing or omitting to do some specified thing after the happening of the event giving rise to a claim under the policy or security. 25 The section deals with conditions in a policy which seek to prevent liability from arising on the one hand and those which seek to avoid a liability which has arisen on the other. That, I think, is the only reasonable and proper construction that can be put on s.9 which will not render it either non- 30 sensical or, stronger still, which will not result in defeating the object of the Act, namely, the protection of third parties using the highway against death or bodily injury by the use of a motor vehicle on the highway." Mr. Smythe, learned counsel for the respondent, urged us to 35 accept the construction put on the section by the Court of Appeal and also relied on the case of New Gt. Ins. Co. of India, Ltd. v. Cross (12). The facts of that case are in many respects similar to those in the present case. The respondent was injured in a motor accident and recovered judgment against the owner of the 40 car, the user of which the insurer (the appellant) had covered by a third party policy. The driver, who had the insured's 364 ROYAL EXCHANGE ASSUR. CO. LTD. u. BAZZY, 1972-73 ALR S.L. 336 S.C. permission to drive, was at the time disqualified from holding a driving licence. The policy contained an exceptions clause ex­ cluding liability of the insurer "in respect of any claim arising whilst the motor vehicle is being driven by ... any person other than the authorised driver." The schedule to the policy defined an 5 "authorised driver" as "any person driving on the insured's order or with his permission provided that [he has a licence] and is not disqualified . . . from driving." The respondent sued the insurer. The insurer's defence was that it was not liable because the driver, being disqualified, was not an authorised driver. The Eastern 10 Africa Court of Appeal (Newbold, V.-P. and Crabbe, J.A., de Lestang, J .A. dissenting) gave judgment for the respondent. Dealing with s.8 of the Kenya Act (which is substantially the same as our s.9 except for the positioning of commas), Newbold, V.-P. said (1965 ALR Comm. at 460; [1966] E.A. at 97): 15 "The section in the Act differs from the British section, which appears as the Road Traffic Act, 1930 s.38, in that in the Kenya Act the comma appears after the word 'policy' instead of after the word 'cease.' Grammatically the words 'in the event of some specified thing being done or omitted to 20 be done after the happening of the event giving rise to the claim' can, with the comma where it is in the Kenya Act, apply only to the words 'any liability so arising shall cease' and not to the words 'no liability shall arise.' ... I accept that the rule of construction in Britain in relation to old 25 statutes was that the courts did not have regard to punctuation in interpreting a section. The reason for this was that until about 1850 the punctuation of sections was inserted after the legislation had been enacted, with the result that the punctuation had received no legislative authority. Whether 30 that rule of construction would apply in Britain in relation to modern statutes is open to doubt. However, whatever may be the position in Britain, I have no doubt whatsoever that in East Africa the courts should in the construction of a section have regard to the punctuation of the section just as much as 35 they should have regard to any other part of it. The reason for this is that the section as enacted by the legislature con- tains the punctuation. Indeed, there are a multitude of examples of amendments to sections containing amendments to the punctuation. In any event I cannot see how it is 40 possible to attach the words 'in the event of some specified 365 THE AFRICAN LAW REPORTS thing being done ... after the happening of the event giving rise to a claim . . . ' to the words 'no liability shall arise' for the simple reason that liability would already have arisen before the event: therefore, those words clearly attach and 5 attach only to the words 'any liability so arising shall cease.' This logical construction is merely reinforced by the position­ ing of the comma in the Kenya Act .... The effect, therefore, of this section is that a condition in a policy of insurance providing that no liability shall arise 10 under the policy is ineffective insofar as it relates to such liabilities as are required to be covered by a policy under s.5(b) of the Act and insofar as any such condition is prayed in aid to avoid liability to a third party who has been injured. Insofar, however, as the relationship of the insurer and the 15 insured is concerned, then, by virtue of the proviso to the section, if the policy contains a provision requiring the insured to repay to the insurer any amount which the insurer has had to pay to a third party in circumstances in which the condition applies, such a provision is perfectly valid." 20 In view of the fact that the Eastern Africa Court of Appeal attached so much importance to the commas in the section, it will be useful to set out the relevant part of the section of the Kenya Act. It reads: "Any condition in a policy of insurance providing that no 25 liability shall arise under the policy, or that any liability so arising shall cease in the event of some specified thing being done or omitted to be done after the happening of the event giving rise to a claim under the policy, shall, as respects such liabilities as are required to be covered by a policy under s.5 30 of this Act, be of no effect: " It is important to note that the punctuation of the Kenya section is quite different from the punctuation of ours. In the Kenya section, there are no less than four commas, whilst in our 35 section there are only two commas. I share the view that punctu­ ation marks in a statute may be called in aid in construing the statute. But I would add that they are only aids and as such they should not be allowed to override the clear and unambiguous meaning of a statute when read as a whole. In view of the differ- 40 ence of the punctuation between the Kenya section and ours and in view of the importance attached to the punctuation of the Kenya section by the Eastern Africa Court of Appeal, we cannot, 366