IN THE SUPREME COURT OF SIERRA LEONE

Civ.APP.2/75

C.O.E. Cole                             Chief Justice

S.C.W. Betts                           Justice of the Supreme Court

E. Livesey Luke                      Justice of the Supreme Court

A, Awunor-Renner                   Justice of Appeal

B.C.E. Warne                            Justice of Appeal

MOTOR & GENERAL INSURANCE COMPANY LIMITED - APPELLANTS

Vs. P.C. 431 ARKURST

&

P.S. 173 SANTIGIE                                                - RESPONDENTS

L.R.O. Garber Bsq. (with him M.J . Clinton Esq. for the Appellants) S.N.K. Basma Esq. (with him U.W. Coker Esq., Mrs. Christine Harding and G. Beits Esq.) for the Repondents

COLE,C. J. :- My Lords, I have already had benefit and Measure of reading before hand- the erudite Judgement of my/xxxxx learned brother, the Hon. Mr. Justice B. Livesey Luke, as tell as that of the Honourable Mr. Justice S.C.E. Warne. Let me straightaway make it clear that, with the final Conclusion of the Honourable Mr. Justice Luke I have no llssent.

There is one significant point, however, in the course of the reasoning of the Honourable Mr. Justice Luke with which I do not quite agree . It relates to that portion of his opinion which he dealt in extenso with Exhibit 'B'. With the greatest respect, baking into account his masoning, I do feel that in this particular instance this case can be distinguished from the cases he has quoted. I agree that it may not bee expressly stated in our rele appellant Acts that the Moto Traffic Licensing Authority has a duty to /xxxx record in writing the pre-regrisite requirements that an

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Operative Certificate of Insurance should bo produced to them either before or at the time a licence was issued. I do feel, however, that taking into consideration all the statutory provisions to which my learned brother Justice Luke has already referred - and I will not Lire you by referring bo thorn in detail again - there seems to me an implied duty imposed on the motor Traffic Licensing Authority to place on come kind of record the details of the relevant Certificate of Insurance presented to that Authority as required by law. Such a Licensing Authority may which to keep separate books for recording those details before licence for a particular vehicle is issued.

I would however endorse the procedure now carried on by the Bator Traffic Licensing Authority as disclosed by Exhibit 'B' as being appropriate in the circumstances of this case.

In my view, this neither renders Exhibit 'B' invalid or worthless or valueless. It has some evidential value which ought to be taken into account by both the High Court, the Court of Appeal and ourselves in considering the case of the parties concerned. In fact, I have done so in coming to my final decision. If my learned brother Luke's view is accepted on this point it will mean that, rite apart from the sociological jurisprudential value which propounds that Courts should endeavour whore possible to make the it in their society works where a defendant mulcted in damages and costs to the High Court refuses for good and sufficient reasons to produce to the trial before the High Court his or her third party certi-ficate of insurance to satisfy the provisions of Section 11 of the Motor Vehicles (Third Party Insurance) Act (Cap. 133) (which shall hereafter to as 'The Act' and the insurer refuses

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to do the same or gives excuses that he does not keep proper records, the public will have nowhere to turn to.

In my view the main, purpose of the combined effect of Section 11 of the Act - the basis of the claim before the High Court - and Section 6 of the Act as well as Rule 10 of the Motor Vehicle a (Third Party Insurance) Rules (Cap. 133) (hereinafter referred to as, 'The Rules') is that whit is required to be produced to the Motor Traffic Licensing Authority and what, in my view, should be entered in the records of that Authority licensed. other things, is - Certificate to show that on the dite on which the licence comes into operation there will be in force - and I stress the expression 'there will be in forced - an operative policy in respect of the motor vehicle which is being licensed .

The evidence before us prove the contrary in my view. For, according to Exhibit 'B' the relevant licence came into force on the 27th August 1971 when there appear to be no operative Certificate of Insurance in force.

In sum, what I am endeavouring to say shortly and simply, is this. Section 11 of the Act should quickly be amended establishing effective provisions in our laws to enable members of the public who have been given judgement by the superior counts of our Republic to be lawfully indemnified by insurers regardless of the fact that the evidence at the trial points to the facts (as in this case ) that notwithstanding that the required proof prodrced to the Motor Traffic Licensing Authority at the relevant time shows that on the dated when the licence copies into operation there will not be in force a policy of insurance , in spite of the fact that there is conclusive evidence pointing to the fact that on the date of the accident there is a valid operative policy covering third parties. This is of obvious and. utmost importance because if as the law stands at present the provision of Section 6 of the Act as well as Rule 10 of the Rules are not complied with, them Section 11 of the Act is in-operative . It is sincerely hoped that legislative measures regarding the whole question

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of Motor Vehicles Third Party Insurance in Sierra Leone will be quickly reviewed in order to avoid hardship to the public as in this case with particular reference to victims of Motor accidents.

Finally, on the question of estoppel I do agree with the views expressed by my learned brother Luke that the principles of law expressed in Vandepitte's case propound very sound doctrines of law on the subject and I will adopt apply them.

I do not think any useful purpose will be served in remitting Bids c no to the High Court for a re-trial because Exhibit 'B' porks for itself most eloquently. It is my sincere hope that on the particular circumstance of this case, the Appellants would not take gross advantage of legal technicalities. I say no more than this; that they will be properly and suitable advised in the public interest by their legal representative.

I would allow the appeal.

C.O.E. Cole Chief Justice

5th April, 1976.