RISIKATU JAMES Y. OGBARA v GANIYU AFOLABI & 2 others (SUIT NO. LD/436/1970) [1971] NGHC 10 (15 March 1971)

**RISIKATU** **JAMES** **Y.** **OGBARA** **(PLAINTIFF)** **_v._** **1.** **G****ANIYU** **A****FOLABI** **2.** **G.N.** **EZIMOREN** **3.** **THE** **NEW** **INDIA** **ASSURANCE** **(DEFENDANTS)** **(1971)** **All** **N.L.R.** **412** **Div****i****si****o****n:** High Court of Lagos **D****at****e** **o****f** **Judgment:** 15th March, 1971 **C****as****e** **Num****b****er:** SUIT NO. LD/436/1970 **Before:** Adefarasin, J. Civil Action. **_HELD_**** _:_** (1) While it is not doubted that an Insurance Company is entitled to be joined where there is an issue as to whether there is a contract indemnity between the defendant and the Insurance Company, a joinder of an Insurance Company to a claim for damages for negligence _simpliciter_ is quite wrong. What a plaintiff in such a case is claiming against the tortfeasor is damages for his wrongdoing. The Insurance Company is certainly no party to such wrongdoing. (2) However, the actual wrongdoer, the defendant to the claim for damages for negligence, who apprehends a dispute between him and his insurers as to the liability of the latter under the insurance policy could apply to join such Insurance Company. In that case, and, not until, then, is there also an issue concerning the contract of indemnity. (3) In the instant case the joinder of the Insurance Company was wrong since there was no dispute whatsoever touching the Company. _Plaintiffs_ _claim_ _against_ _the_ _3rd_ _Defendant_ _struck_ _out._ _Cas_ _e_ _s_ _re_ _f_ _err_ _e_ _d_ _to_ _:_ _C_ _a_ _r_ _p_ _e_ _n_ _t_ _e_ _r_ _v_ _._ _E_ _b_ _b_ _l_ _e_ _w_ _h_ _i_ _t_ _e_ _a_ _n_ _d_ _o_ _r_ _s_ _.__,_ (1939) 1 K.B.D. 347. _Sun_ _Insurance_ _Company_ _v._ _Ojemuyiwa,_ (1965) N.M.L.R. 451. _Constitution_ _referred_ _to:_ _Constitution_ _of_ _the_ _Federation_ _s_. 117(6). CIVIL ACTION SUIT NO. LD/436/1970. _L_ _u_ _k_ _a_ _n_ _m_ _i_ for the Plaintiff. _S_ _ofol_ _a_ for the 3rd Defendant. Adefarasin, J.:-The question that arises for a decision in this application is whether an insurance Company ought to be joined in an action for negligence arising out of the use of a motor vehicle in respect of which that Insurance Company had agreed to indemnify the insured defendant. My view is that such an Insurance Company cannot be joined to such an action for damages for negligence since the Company are no tortfeasors. What I have in mind is amply illustrated in the case in hand by the particulars of claim which concludes:- "The plaintiff therefore claims against the defendants jointly and severally the sum of £8,000 as special and general damages." In paragraph 3 of the Statement of Claim the plaintiff also averred: "The 3rd defendant company is the insurer of the 2nd defendant in respect of the said Motor car and is sued accordingly." It seems clear from the foregoing that the 3rd defendants are being sued jointly and severally with the 1st and 2nd defendants for a tort which that insurance company did not commit and it is at the same time made clear that the 3rd defendants are joined on the sole ground that they had insured the vehicle of the other defendants which had been involved in the accident which caused the damage. It is clear therefore that what is claimed against the 3rd defendants is for damages suffered by the plaintiff as a result of the negligence of the 1st defendant. To my mind the 3rd defendant could not be joined to an action where the only allegation is that there was an act of negligence by someone else in respect of a vehicle covered by an insurance policy of which they were the insurers. It might be different if there were any dispute on the liability of the insurance company as to their liability to indemnify the assured. It seems to me that there is a complete misunderstanding of the decision of the Supreme Court in _Sun_ _Insurance_ _Company_ _v._ _Ojemuyiwa_ , 1965 N.M.L.R. p. 451. In that case, Bairamian, J.S.C. (as he then was) at page 454 of the report stated:- "The remaining reflection is that as in Nigeria civil cases are tried by a judge alone, there is no need to conduct those fatal accident cases in a world of make believe. At present it is usual to name the owner of the vehicle and his driver as the defendants to a suit claiming damages, and to leave the insurers who control the defence, formally out of the suit; we would ask the solicitors of the parties to consider whether in these third party insurance cases it would not be better to have insurers also joined." In the Sun Insurance Company case the Supreme Court, acting under s. 117(6) of the Constitution of the Federation granted leave to the insurers as a person having an interest in the matter of a claim for damages for negligence within the meaning of s. 117(6) of the Constitution. Since then there appears to be a thinking amongst some legal practitioners that the Supreme Court decision was an authority for joining an insurance company in every running down case in which the insurance company could be liable for contribution or indemnity. This thinking, to my mind, is a complete misunderstanding of the _obiter_ _dictum,_ of Bairaimian, J.S.C. in the Sun Insurance Company case. While it is not doubted that an Insurance Company is entitled to be joined where there is an issue as to whether there is a contract of indemnity between the defendant and the insurance company, a joinder of an insurance company to a claim for damages for negligence _simpliciter_ is quite wrong. What a plaintiff in such a case is claiming against the tortfeasor is damages for his wrong doing. The insurance company is certainly no party to such a wrongdoing. He is no wrong doer. What concerns the Company is purely contractual-the contract of insurance. However, the actual wrongdoer, the defendant to the claim for damages for negligence, who apprehends a dispute between him and his insurers as to the liability of the latter under the insurance policy could apply to join such insurance company. In that case, and, not until then, is there also an issue concerning the contract of indemnity. In the instant case the joinder of the insurance company is wrong since there is no dispute whatsoever touching the company. In _Carpenter_ _v._ _Ebblewhite_ _and_ _others_ 1939 1 KBD p. 347 Greer L.J., discussing whether an insurance company can be joined to an action in circumstances as in the instant case, said:- "It seems to me that the making of such a claim is contrary to anything that has ever been decided in regard to actions for declarations. It has never been determined that in an action by a plaintiff against a defendant there can be a claim by the plaintiff for a declaration of liability against a third person for the relief claimed in the action where no dispute has as yet arisen between the plaintiff and that person. It would not make any difference if the claim for a declaration against that person were made in a separate action against him, for it would still be vexatious for the plaintiff to bring such an action against that person before any dispute had arisen between them. It seems to me that no dispute can arise between the plaintiffs and the insurance company until after the disposal of the action by the plaintiffs against the defendant Ebblewhite in favour of the plaintiffs and the establishment of a right of indemnity by Ebblewhite against the insurance company." Following the decision in the Ebblewhite case I cannot accept the proposition that the _obiter_ _d_ _ictum_ of the Supreme Court in the Sun Insurance Company case is an authority for an injured person to join his adversary's insurance company to an action for damages sustained by him by the negligence of his adversary in a motor accident. (See also _Post_ _Office_ _v._ _Norwich_ _Union_ _Fire_ _Insurance_ _Company_ 1967 1 A.E.R. p. 577) I would therefore strike out the plaintiff's claim against the 3rd defendant. I award costs of £15-15s-0d. Against the plaintiff in favour of the 3rd defendants. _Plaintiff's_ _claim_ _against_ _3rd_ _Defendant_ _struck_ _out._