Transworld Insurance Company Ltd v Mohamed T. Dumbuya (CIV APP 42 of 2007) [2010] SLCA 20 (25 May 2010)

t Ee civ. App. 42/2007 \55 _ IN THE COURT OF APPEAL OF SIERRA LEONE ‘TRANSWORLD INSURANCE COMPANY LTD pe - DEFENDANT/APPELLANT conAMt: MOHAMED TAYLOR DUMBUYA = - PLAINTIFF/RESPONDENT Hon. Mr. Justice S.A. Ademosu - oA Hon. Mr. Justice N.C. Browne-Marke - JA. Hon. Mr. Justice E.E. Roberts - TA ADVOCATES: S.M. Sesay, Esq. for the Respondent E.E.C. Shears-Moses, Esq, for the Appellant JUDGMENT DELIVERED ON 25 DAYOF (an 2049 ADEEMOSU J.A- . ‘This is an appeal against the decision of the High Court dated the 7° day of ‘September

Background

Following an accident on 2 May 2003 between @ Honda Motor Cycle No. ACC 856 ridden by the, Respondent and vehicle No. ABK 098 owned by a Pastor Sahr A.. Samura and insured with the Appellant Company whereby the Respondent was S70817 injured. ‘Anaction for negligence was taken against Pastor ‘Sahr A. Samaura. Interlocutory judgment in default of defence was entered and the assessed damaged amounted to 11061 ,448.000.00 and a ne: claim against the defendanvappellant is f In the High Court the Pia “ = For the recovery of the sum of ae (Sixty Nine Million One Hundred and Fifty Bight Trousand Lenn

(S6 2. a at Le8/00 per centum from the 11 day of July 2007 until Particulars of Claim

1. BY a Policy of insurance issued by the defendant company as authorized insurers with the meaning of the Motor Vehicle (Third Party Insurance)Act Cap. 133. hereinafter referred to as the “Act”) the assured Sahr A. Sammura, the defendants in consideration of the premium paid to them agreed to insure the aforesaid assured for a period of Twelve months in respect of any liability which may be incurred by him in respect of the death of or bodily injury to any person caused by or arising out of the use on the road of motor vehicle registered ABK098 as required by Section 3(1) of the aforesaid Act.

2, __ Inpursuance of Section 7(3) of the Act the defendant company delivered to the said Sahr A. Samura a certificate of insurance in the prescribed form in respect of the said policy of insurance.

3. Onthe 2% May 103 Fiabe currency of the said policy the plaintiff was riding his Honda XL 125 motor cycle along Fourah Bay college Road, Mount Aureol,

Freetown when the said assured’s servant or agent so negligently drove and managed the said motor vehicle along the said road that he caused or permitted the same violently to collide with the plaintiff whereby the plaintiff sustained severe personal injuries and suffered loss and damage.

4. The plaintiff brought an action in the High Court of Sierra Leone the short title of

which was €C62/2006 2006 D. No. 9 Between Mohamed Taylor Dumbuya and Sehr A. Sarmura and Mai Kanneh Juana for damages for negligence in respect of the personal injuries and consequential oss and damage and on bail ba bal June 2007 the plain tiff entered an interlocutory judgment in te said action for damages to be assessed and on the 11 day of July 2007 the said damages were duly assessed bY the High Court in the sum of Le61,648,000/00 plus costs assessed at Le7,500,000.00.

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5. By letter dated 25 July 2007 the plaintiff. 1S + judgment sum the defendant has wf - Pani ui paametl fused and has continued to refuse to satisfy the 6. ee Section u of the said Act the plaintiff duly served : notice of intention to commence civil proceedings against the assured. The aforesaid notice and reminder were dated 6* January 2006 and 9" November 2006.

7, The defendant company by their letter dated the 23" November 2006 invited the plaintiff's solicitor to a meeting with their claims committec. The plaintiff's solicitor replied and invited the said committee to a meeting. The committee came and after discussions with a view to settling the plaintiff's claim. The members of the said Committee left without settling the aforesaid claims,

promising to return Jater. When the committee failed to settle this matter the plaintiff proceeded to sign judgment against the defendant company's assured.

3, By virtue of the provisions of Section 11 of the Act the defendant became and are tiable to pay to the plaintiff the amount of the said judgment and costs together with interest thereon, but the defendant company has failed and refused to pay the plaintiff the said sum or any part thereof.

The defendant/appellant filed a Defence to the plaintisffrespondent’s claim. The Defence is as follows:

1, The defendant admits paragraphs 1 and 2 of the plaintiff's particulars of claim.

3. The defendant cannot admit or deny paragraph 3 of the plaintiff's particulars of claim and will put him to strict proof.

3, The defendant cannot admit or deny paragraph 4 of the plaintiff's particulars of claim but will say they should have been made @ party to those proceedings and would have called an expert opinion evidence especially that of Dr. M. Baimba Bayoh, the Medical Doctor who treated the plaintiff on the same foot on the 12"

of May 2002 which was allegedly crushed in the accident is so vital to the ; defendant’s caS¢ and that 4 Representative from the Insurance ‘Commission is be: suited t0 verify the quantum to be paid out. ‘And would further say that the

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insured was not entitled to retain th i | ‘ 8 au. ¢ services of a solicitor but instead went on to 4 aera ae - the pin particulars of aim the interlocutory judgment in itself does ee ~ a not give exclusive judgment because the other side must be heard.

5, The Defendant admits paragraph 6 of the plaintiff's particulars of claim but will farther say that the motor vehicles (Third Party Insurance) cap. 133 of the Lays of Sierra Leone say a mere notice of, ‘proceedings is not sufficient and that ok are exceptions to section 11 of the Act.

6. The Defendant admits paragraph 7 of the plaintiff's particulars of claim and will : further say that they were asked to settle a claim which they thought it will be best to call experts (sic) opinion evidence hence the refusal to settle the claim.

7. The Defendant’s denies (sic) paragraph 8 of the plaintiff's particulars of claim to the extent that the claim was so exorbitant which the Act does not provide for.

8. General traverse. Following a Notice of Motion dated the 21" day of August, 2007 the High Court by an Order dated the 7® day of September 2007 granted leave to the plaintiff to enter, judgment against the defendant company for the reliefs set out in the special endorsement in the Writ of summons plus costs assessed at Le2,000.000.00. Being dissatisfied with the Ruling of the Court an ‘Amended Notice of Appeal was filed pursuant to an order of this Court. The grounds of appeal are as follows:

(1) The Jearned trial judge failed to consider whether any triable issue was raised by the defence considering paragraphs 2 and 6 of the defence (ii) The jearned trial judge acted on the wron8 premise in saying fea the appellant did , mot disclose any reasonable a4 POD? fe defence, ling is Hew the defence could only have been neressar'? st aside the eats a against the assured. The application however pertained to a default in filing @ a aan art juige filed consider the matter of quantum raised in the

ia ee, _| E defence. (Sq (iv) The cost assessed was arbitr before the court to support he _ imeasseabhy bigh widhcrn sayin Counsel for the Appellant, in his argument on ground (1) drew the court's attention to paragraph 89 of the records where the learned trial judge said: “Even if the court were to consider the defence filed in their proceedings, I am of the view that the defence does not disclose any reasonable and bona fide defence. The defendant is bound to show that he has some reasonable ground of defence to the action. This is clearly absent in the defence filed by the defendant company.” ~ Counsel submitted that once a defence is in the file it must be considered and pronouncement j made on it. For the proposition he referred to the ‘Annual Practice 1999 page 361 paragraph 19/2/1 and page 365 paragraph 19/7/4. The pith and substance of the law cited there is that if before judgment is entered, the defendant serves a defence even though it be out of time judgment in default cannot be entered (Gill V Wodfin (1884) 25 Ch. D. 707 C.A; Gibbings V Strong (1884) 26 Ch. D 66 C.A. Having perused the Ruling I am left in no doubt that the leaned judge did consider the defence filed before dismissing it. Tam in full agreement with the leamed trial judge that the issues raised in the appellant's defence could only have been raised in an application to set aside a judgment obtained against their assured and even as regards the quantum of the award and costs these have no place in the present claim against the appellant. It should be borne clearly in mind that at the present stage of the proceedings all the respondent has 19 show is that there is a judgment against the insured in respect of the policy and also proving that due notice of the commencement of the peoveeuings was served on the insurer (the Appellant). ‘That is why the action against the Appellant is to recover the amount of his judemeht® eine ha jones state Laws of Sierra Sexson 11(2) of Motor Vehicle (THIET nd underthe Ac. See eon 70) Leone 1960, As regards obligation of the ra. V Sesay (196061) SLLR. 162, The present of cap 133 and White Cross Insurance ol sabe judgment in default but a summary proceedings appealed against cannot be sai at under the Motor Vehicles (Third Party

Judgment

The appellant ought to have known _ —PH—— See

| ipsurance) Act when the respondent commenced this act i i ihe appellant. It was indeed a misconception on the par eo spend had no remedy against, | expected the respondent to bring in the appellant as a _ P; sinipeacahlanaalaini ‘arty. | ‘The proper procedure as I comprehend iti Jigence; the insurer (i itis that when the respondent instituted the action for negligence; t (i.e. appellant) had a right to defend i when the issues now being raised would have b = ———— Pee we been dealt with at the trial or they could have defended the action in their own name. By then. they could have called an expert medical evidence and whatever other issues arising therefrom. On the other hand another option opened to the appellant which they did not avail them self of, was either to appeal against the judgment in the previous action or apply to set it aside either in their own name or in the name of the assured. ‘The present action is based on a right accorded to the respondent by section 11 of the Motor Vehicles (Third Party Insurance) Act Cap. 133 because it gives direct recourse to the insurer, The conclusion I have reached is that there is no merit in this appeal. It is therefore accordingly dismissed with costs to the respondent and such costs to be taxed if not agreed. HON. MR. JUSTICE S.A. ADEMOSU JA. De. 282.0] Cee OM in HON. MR. JUSTICE N.C. BROWNE-MARKE J. | HON. MR. JUSTICE EE. ROBERTS J.A. L ees