(1979) 1 CLR 328
[*328] 1979 May 22
[TRIANTAFYLLIDES, P., STAVRINIDES, L. LOIZOU, JJ.]
CALEDONIAN INSURANCE CO. LTD.,
Appellants,
v.
ANDREAS ERACLEOUS AND OTHERS,
Respondents.
(Civil Appeal No. 5571).
Civil Procedure—Practice—Jurisdiction—Appellate jurisdiction—Issues relevant for the determination of the appeal not determined by the trial Court—Relevant material and sufficient arguments not before Court of Appeal—New trial ordered notwithstanding wide powers of Court of Appeal, under section 25 of the Courts of Justice Law, 1960 (Law 14/60) and rule 8 of Order 35 of the Civil Procedure Rules because otherwise it would be usurping the functions of a Court of first instance and would not have been acting as an appellate Court.
The respondent Eracleous was, on August 27, 1971, injured in a road traffic accident caused by the negligence of a certain Derek Inman who was driving “a self-drive car”. The said car belonged to a certain Panayi who had insured it against third party risks with the appellants; and in the relevant insurance policy there was a special indorsement covering the hiring of the vehicle to another driver.
Eracleous brought an action against Inman and obtained judgment for the amount of C£7,060 damages plus interest and costs. As this judgment remained unsatisfied Eracleous filed an action against the appellants, as an insurance company under section 10(1) of the Motor Vehicles (Third Party Insurance) Law, Cap.333, for a declaration that the appellants are liable to pay him the said amount of C£7060, as well as for judgment for the said amount.
The trial Court gave judgment in favour of respondent Eracleous and hence this appeal. [*329]
During the hearing of the appeal it has transpired that certain matters on which the trial Court did not consider it necessary to pronounce, have turned out to be quite relevant for the purpose of the determination of the appeal. Such matters included, inter alia, the question of whether or not there existed, in any event, liability of the Caledonian towards respondent Eracleous, as a third party, under the relevant provisions of Cap. 333.
Held, that in respect of the above issues, which the trial Court has not resolved there is not before this Court all the relevant material and sufficient arguments; that, also, notwithstanding the wide powers of this Court on Appeal, both under section 25 of the Courts of Justice Law, 1960 (Law 14/60), as well as under rule 8 of the Civil Procedure Rules, it should avoid determining this case in effect as a trial Court rather than as an appeal Court because it would be usurping the functions of a Court of first instance and would not have been acting as an appellate Court (see Djeredjian (Import-Export) etc. v. The Chartered Bank (1965) 1 C.L.R. 130 at p. 133); that, therefore, a new trial ab initio, on all issues, of this case, before, necessarily, a differently constituted bench will be ordered.
Appeal allowed. New trial ordered.
Cases referred to:
Monksfield v. Vehicle and General Insurance Company Ltd., [1971] 1 Lloyd’s Rep. 139;
Weddell and Another v. Road Transport and General Insurance Company, Limited [1932] 2 K.B. 563;
Gale v. Motor Union Insurance Company. Loyst v. General Accident, Fire and Lfe Assurance Corporation [1928] 1 K.B. 359.
Djeredjian (Import-Export) Ltd. etc. v. The Chartered Bank (1965) 1 C.L.R. 130 at p. 133.
Appeal.
Appeal by defendants against the judgment of the District Court of Nicosia (Stavrinakis, P.D.C. and Orphanides, S.D.J.) dated the 31st March, 1976, (Action No. 5319/74) whereby it was declared that they are liable to pay to the plaintiff the amount [*330] of C£7,060 damages which were awarded to the plaintiff in Action No. 431/71 in the District Court of Kyrenia.
A. Triantafyllides, for the appellants.
E. Vrahimi (Mrs.) with Fr. Kyriakides, for A. Eracleous, respondent.
D. Liveras, for the Seven Provinces Insurance Co. Ltd. respondents.
No appearance for D. Inman, respondent.
Cur. adv. vult.
TRIANTAFYLLIDES P. read the following judgment of the Court. In this case respondent Eracleous has sued, by means of action No. 5319/74, in the District Court of Nicosia, the appellants, Caledonian Insurance Co. Ltd. (hereinafter to be referred to as the “Caledonian”)—as an insurance company under section 10(1) of the Motor Vehicles (Third Party Insurance) Law, Cap.333—for a declaration that the appellants are liable to pay to him the amount of C£7,060 damages, plus legal interest and costs, which were awarded to him in action No. 43 1/71, in the District Court of Kyrenia, as well as for judgment for the said amount, with interest and costs.
The salient facts, as found by the trial Court, are, briefly, as follows:-
On August 27, 1971, the said Eracleous was injured in a road traffic accident caused by the negligence of a certain Derek Inman, of Seaford, England.
At the time Inman was driving motor-car No. ZEA 134.
Eracleous brought action No. 43 1/71 against Inman, in the District Court of Kyrenia, and on September 13, 1974, he obtained judgment against him as aforesaid.
The car which was being driven, at the material time, by Inman, belonged to a certain Georghios Panayi, who had insured it against third party risks with the appellants; in the relevant insurance policy there was a special indorsement covering the hiring of the vehicle to another driver, in other words as “a self-drive car”.
On August 26, 1971, Inman hired the car in question from [*331] Panayi, by filling in a relevant form, as well as a declaration, for the purposes of the insurance with the appellants.
On the same day Inman obtained a comprehensive insurance cover for the same- car from the Seven Provinces Insurance Co. Ltd. (hereinafter to be referred as the “Seven Provinces”), for a period of two days, that is from 6.25 p.m. on August 26, 1971, to midnight of August 28, 1911.
Eracleous, before filing the aforementioned action in the District Court of Kyrenia, sent a relevant notice to the appellants, under section 10(2) of Cap. 333.
The judgment obtained by him on September 13, 1974, in the said action, remains unsatisfied.
Thus, the present action, No. 53 19/74, in the District Court of Nicosia, was filed by respondent Eracleous against the appellants, the Caledonian, on October 29, 1974.
In the meantime, on September 25, 1971, the Seven Provinces filed action No. 5471/7 1, in the District Court of Nicosia, against Inman, seeking a rectification or rescission of the insurance cover- which had been issued by them, as aforesaid, to Inman, so as to exclude from their liability to him, as insurers, third party risks. This action was dismissed on December 29, 1973, and an appeal made against its dismissal, civil appeal No. 5282, failed, eventually, on February 13, 1976.
The appellants, by their statement of defence in the present proceedings, contended that, by clause 2 in Section II of their insurance policy, they undertook to “indemnify any Authorised Driver who is driving the Motor Vehicle provided that such Authorised Driver ……….. (ii) is not entitled to indemnity under any other policy” and that since Inman was entitled to indemnity under the insurance cover which had been issued to him by the Seven Provinces, their own policy had become inoperative. Consequently, they counterclaimed against respondent Eracleous, as well as the Seven Provinces and Inman, seeking, in effect, the following declarations:-
(a) that they were not liable to indemnify Inman,
(b) that on August 27, 1971, their policy in question was not in force, or that it had become inoperative in [*332] respect of the car concerned and the accident between such car and that of respondent Eracleous,
(c) that they did not have any liability, under their insurance policy, towards any of the defendants by counterclaim in respect of such accident, and
(d) that on August 27, 1971, the car driven by Inman was covered by insurance by the Seven Provinces and that this company was liable to pay any sum which Inman had been adjudged to pay to respondent Eracleous in action No. 431/71, in the District Court of Kyrenia.
Eventually, the trial Court gave judgment in favour of respondent Eracleous, as already stated above, and dismissed the counterclaim of the appellants for technical reasons expounded in its judgment, without prejudice to the contractual rights of the parties under the insurance policies concerned.
Also, the appellants were ordered to pay the costs of respondent Eracleous and of the defendants by counterclaim.
In deciding, as aforesaid, the trial Court held that, in view of the terms of the relevant indorsement—“Indorsement No. 26” -by means of which there was covered, by virtue of the insurance policy issued by the appellants, the hiring to another driver of the car which was being driven by Inman when the accident in question occurred, Inman, as a hirer, had become himself an insured person under the policy, and that, although according to the definition of “authorised driver” given in the policy the insured is included in such definition, the expression “Authorised Driver” in clause 2 of Section II of the said policy had to be construed in a narrow manner, so as to exclude an insured person; consequently, the said clause 2 of Section II was not applicable in relation to Inman, so as to relieve the appellants from liability as insurers under their insurance policy on the ground that Inman was insured, also, at the same time, in connection with the car which he was driving, with the Seven Provinces.
It was, also, held by the trial Court that Inman was, under the insurance cover issued to him by the Seven Provinces, the insured, and not an authorised driver.
Against this finding the Seven Provinces filed a notice of cross-appeal [*333] contending that the trial Court had erred in finding that Inman was not an authorised driver, but the insured under the policy issued to him by them; but at the commencement of the hearing of the present appeal the said cross-appeal was withdrawn and dismissed accordingly.
Having made the above findings the trial Court refrained from deciding, in the present proceedings, whether or not the Seven Provinces were in any way liable towards Inman, as an insured person, and left this matter open for determination in another action.
Moreover, in relation, to the counterclaim of the appellants against, inter alia, the Seven Provinces, the trial Court appears to have approached the matter only from the aspect of the entitlement to bring an action under section 10 of Cap. 333, even though counsel for the appellants had made it clear, as it is stated by the trial Court in its judgment, that he was not basing his counterclaim on that section; also, in spite of the identical ratable proportion clauses in both the insurance policies concerned, namely those of the Caledonian and of the Seven Provinces, no consideration was given to the possibility of the existence, in the circumstances of this particular case, of a right of contribution as between Caledonian and Seven Provinces (see, inter alia, Chitty on Contracts, 24th ed., vol. 1, p. 897, para. 1875, Halsbury’s Laws of England, 4th ed., vol. 25, p. 285, para. 538, MacGillivray & Parkington on Insurance Law, 6th ed., p. 833, para. 1998 and Ivamy on General Principles of Insurance Law, 3rd ed., p. 462); and, of course, closely related to this aspect of this case is the issue of the liability, if any, of the Seven Provinces towards Inman, as an insured person, regarding which, as already stated, no finding was made by the trial Court.
As has transpired during the hearing of this appeal before us, certain other matters on which the trial Court did not consider it necessary to pronounce, have turned out to be quite relevant for the purpose of the determintion of this appeal. Such matters include the question of whether or not there exists, in any event, liability of the Caledonian towards respondent Eracleous, as a third party, under the relevant provisions of Cap. 333. Also, whether, even if Inman should have been treated, on the basis of the aforementioned indorsement 26 in the policy of Caledonian, as an authorised driver, and not as an insured person, under [*334] such policy, Caledonian has, by virtue of clause 2(ii) of Section II of their policy, been discharged from any liability altogether (and see, inter alia, in this respect, Monksfield v. Vehicle and General Insurance Company Ltd., [1971] 1 Lloyd’s Rep. 139) or whether they are to be regarded, in view especially of the ratable proportion clauses in both the Caledonian and the Seven Provinces relevant policies, as being still liable, by way at least of contribution, to indemnify Inman as regards the judgment given against him in action No. 431/71, in the District Court of Kyrenia (and see, inter alia, in this connection, Weddell and another v. Road Transport and General Insurance Company, Limited, [1932] 2 K.B. 563, as well as Gale v. Motor Union Insurance Company. Loyst v. General Accident, Fire and Life Assurance Corporation, [1928] 1 K.B. 359); this question appears to be related to the issue of whether Seven Provinces are liable to indemnify Inman, too, but this issue has not been determined by the trial Court.
We would, indeed, have been much happier if we could have put an end to this litigation as a whole by delivering a final Judgment, at this stage, in this appeal; but, in respect of some of the issues referred to above, which the trial Court has not resolved, we do not seem to have before us all the relevant material and sufficient arguments; also, notwithstanding our wide powers on appeal, both under section 25 of the Courts of Justice Law, 1960 (Law 14/60), as well as under rule 8 of Order 35 of the Civil Procedure Rules, we should avoid determining this case in effect as a trial Court rather than as an appeal Court, because as has been pointed out in Djeredjian (Import-Export) Ltd. (in Liquidation under Supervision of the Court) Through its Liquidators (a) Chr. P. Mitsides (b) Nicos Chr. Lacoufis v. The Chartered Bank, (1965) 1 C.L.R. 130 (at p. 133):-
“…When we are called upon to go into the facts and merits of the case and then adjudicate on a matter which has not already been adjudicated on its merits in a lower Court then we are of the opinion that we are usurping the functions of the Court of first instance and we are not acting in our capacity as an appellate Court.”
We have, therefore, decided that the better course, in the interests of justice, as well as of all parties concerned, is to [*335] set aside the judgment of the trial Court and order a new trial of this case.
Before concluding this judgment we would like to state that we have considered whether we might, at least, have pronounced now on the issue as to whether the trial Court rightly treated Inman as an insured, and not as an authorised driver, under the policy issued by Caledonian, the appellants. In spite of the fact that we have heard lengthy arguments on this point, we have decided in the end to refrain from expressing any opinion as regards this issue, because it is in a certain way related to the finding of the trial Court that Inman was an insured, and not an authorised driver, under the insurance cover accorded to him by Seven Provinces, and though this finding was, initially, challenged, too, by means of a cross-appeal, which was filed by counsel appearing for the Seven Provinces, eventually, as was stated already in this judgment, the cross-appeal was abandoned and dismissed, thus rendering it impossible for us to deal in a complete manner with this particular aspect of the present case.
In the light of all the foregoing we have decided to order a new trial ab initio, on all issues, of this case, before, necessarily, a differently constituted bench; such new trial should take place with all possible expediency so as to avoid any further delay in putting an end to this litigation.
As regards costs, we have decided to set aside the order for costs made by the trial Court and to direct that they should be costs in the cause in the new trial; and we, also, have decided to order that, likewise, the costs of this appeal should be costs in the cause in the new trial.
Appeal allowed. New trial ordered.
Order for costs as above.
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