Safari Clothing Ltd v Pearl Assurance Co. (Civil Cause 2313 of 1994) [1995] MWHCCiv 27 (8 August 1995)

IN THE HIGH COURT OF MALAWI PRINCIPAL REGISTRY CIVIL CAUSE NO. 2313 OF 1994 BE TWEEN: SAFARI CLOTHING COMPANY Ltd PEARL ASSURANCE COMPANY - and - PLAINTIFF DEFENDANT CORAM: Tembo, J Chirwa, of Counsel for the Plaintiff Chisambiro, of Counsel for the Defendant Nkhoma, Official Interpreter J U D G M E N T the plaintiff has applied to the Court By originating summons, in a seeking the Court's interpretation of a watchman warranty the theft, under which policy policy of plaintiff is the insured and the defendant is the insurer. The application has been made under, or in accordance with, order 14A of the Rules of the Supreme Court. insurance against The Court therefore, condition of the parties' insurance policy - asked is, to interpret the following 11 It is a condition of this Policy that - ( a ) (b) the insured shall employ a watchman who shall be the premises are given that instructions and callers the whole of closed against customers be the at intervals. patrolled premises shall when him by in the event of the services of such Watchman being temporarily or permanently discontinued or to be unavailable the been suspended until advised the continuance of the insurance obtained. 11 insurance shall be deemed have shall in writing their assent the Company and to • the fact The application is supported by an affidavit of the plaintiff. that there were a 1 so Let me note, here, two other In accordance with the requirement affidavits for the defendant. of Order 14A, to the effect, that ·the object of the defendant I s affidavit evidence should be to confirm or adopt or supplement the material facts deposed to by, and on behalf of, the plaintiff the but not to traverse or challenge or contradict such facts, parties agreed that the Cou r t should ignore the affidavits of the defendant to the extent that they are inconsistent with that of ,.,,,Gr-1 ,., , .. ouR-r- ,. _____ .. f J . ' 8' ·- • R4R'f· - 2 - in For insurance respect of the Court, the determination of took out a policy of let me also note that, the plaintiff, as follows: facts surrounding namely, the plaintif and, tl1erefore, record that there was no dispute between the parties as to the necessary material facts about the case before the Court. I will mainly, but not Consequently, only, make reference to the affidavit evidence of the plaintiff in the construction of the policy provision put before me. In addition to t he foregoing, in terms of rule 1 (1) (a) of Order 14A I find that the question put before the Court is suitable for determination without a full trial of the the action affecting the parties. The question the for interpretation of the Watchman Warranty set out above, emerge The clearly from the affidavit of plaintiff its premises at Ginnery Corner in the City of Blantyre; in particular against loss or damage to be caused by theft involving entry to or exit from those premises. The policy is dated 30th November, that 1993. the plaintiff had a contract with Securicor insurance policy, the (Malawi) Limited for the provision of guard services for period of 18:00 hours to 06:00 hours everyday, to During the Friday and for 24 hours on Saturdays and Sundays. the plaintiff's a period of theft occurred at lodged by premises. the thereupon, a claim was The defendant has plaintiff for compensation under the pol icy. the that declined plaintiff was in that there in breach of the watchm an warranty, was no guard on duty at the time the theft occurred. There was, however, still the (Malawi) Limited for guard services, plaintiff and securicor except that no guard was provided for the plaintiff's premises because the On his part, the plaintiff, p l aintiff had no notice whatsoever. is 1 iable to therefore, maintains the view that the defendant compensate the plaintiff for the the theft, hence this application. the staff of Securicor were on strike of which the plaintiff's claim contending the watchman warranty, the policy, Consequent the contract between lo ss occasioned by the purposes of in existence from Monday to pay then in I have heard warranty put follows:- both counsel on before me. Again, the construction the warranty of the watchman is expressed as "It is a condition of this policy that- ( a ) (b) the insured shall employ given that instructions closed against customers be the intervals. premises s hall a watchman when the and callers patrolled who shall be premises are the whole of at him by in the event of services of such watchman being or permanently or temporarily to be unavailable the been shall suspended until advised the in writing their assent continuance of the insurance obtained.". insurance shall be deemed have discontinued the Company and to - 3 - - v- Prince Ernest Augustus of Hanover On his part, Mr. Chirwa, Counsel for the plaintiff had submitted that in interpreting the policy condition set out above the Court should have regard to the maxim noscitur a sociis, that a word in itself does not have an absolute meaning, and that its meaning can, therefore, be gat hered from the context. Counsel further in respect of statutory submitted that such was also the case interpretaton, as was noted by Viscount Simonds in the case of ( 1957) Attorney General A. C. at page 463, that "It means only that the elementary rule must be observed that no one should profess to understand any part of a statute or of any other document before he had read the whole of it. Until he has done so he is not entitled to say that it or any part of it is clear and unambiquous.". Consequently, in Mr Chirwa invited the Court to read the policy of its entirety to be construed. Mr Chirwa also submitted that should the Court find it must be the policy provision construed against that proposition, he relied on the followin g passage from Cheshire and Fifoot's Law of Contract, 9th Edition, pages 12 to 13- the defendant, who prepared to better understand to be ambiguous, in question the words insurance in order For it. "If there is any doubt as to the meaning and scope of the excluding or limiting term, the ambiguity will be resolved against the party who has inserted it and who is now relying on it. As he seeks to protect himself against he would otherwise be subject, it is for him to prove that his words clearly and aptly describe the co n tingency that has in fact arisen.". liability to which In that respect, Scrutton L. J, Company t h e principle as follows- in the case of Szymanowski and - v - Beck and Company ( 1923) 1 K. B. at page 466, stated I approac h the consideration of the principle repeatedly acted upon by that clause "Now the applying that if a party wishes House of Lords and this Court - to exclude the ordinary consequences that would flow in law from the contract that he is making he must do so in no clear protection.". ambiguous terms... clause is an in particular, focus its attention on paragraph the watchman warranty set out above Mr Chirwa invited the On Court to, (b) thereof in order to ascertain the meaning of the expression "in the event of the services of such watchman being temporarily or permanently discontinued or unavailable ... ". In that regard, Mr Chirwa submitted that the expression referred to a positive act of the plaintiff, of discovering that such services had so been It was further his d iscontinued or that they were un a v ailable. submission that such expression could not have meant that the parties had to circumstances which were out of his contr ol. If the parties by that provision intended to refer to an act over which should be taken to have the plaintiff, as the insured, had no control, then, the Court to subject intended insured the - - should find the provision to be ambiguous and, therefore, to be construed against the defendant. Mr Chirwa thereby concluded his submissions. in that, should interpret submitted therefore the Court should the watchman warranty On his part, Mr Chisambiro, Counsel for the defendant, submitted that its entirety and not only part (b) thereof. He maintained the view in that its framers had only that the warranty was not ambiguous that respect, Mr Chisambiro used ordinary English words. In further be the warranty in the ordinary and popular sense in which the parties construed intended to use the words constituting the expression must have of the watchman warranty. He further submitted that if the Court does not find the words used to have meanings ascribed to them as then it should find that the expression ordinary English words, in their technical sense and in question consists of words used trade usage, and that it should therefore, be presumed that the parties had intended that such words should receive and have their technical and trade usage meaning. For these propositions, Mr Chisambiro cited the case of Starfire Diamond Rings Limited - in particular the comments v - Angel (1962) 2 Lloyds' Report 217, of Upjohn L. J that: the meaning or further to define words such as these which are common in everyday use, having a perfectly ordinary and clear words In that case, the Court had to determine the scope of meaning.". an exclusion's clause jeweller's Block Policy excepting liability for theft when the assured's car was "left unattended". The driver had gone thirty - seven yards from the car in order to re l ieve himself and a suitcase containing jewellery was stolen by a thief in that short period of time. The Court had held that in the circumstances the car had been "left unattended". Besides v - French (1803) 4 East 130, that, the 135, Lord Ellenborough C. J., made the following comments on rules of construction applicable to the terms of a pol icy of insurance. in the case of Robertson - I deprecate any attempt to expound in a to upon same this this the to all other in all other cases. head, terms of other It that "In the course of the argument it seems to have been assumed that some peculiar rules of construction apply to the terms of a pol icy of assurance which are not equally applicable to the instruments is therefore proper to and state of construction which applies instruments applies equally instrument of a policy of insurance, Viz. that it is to be construed according to its sense and meaning, as collected in the first place in it, which terms are themselves from the terms used in their plain, ordinary, and popular to be understood sense, unless to the subject matter, as by the kriown usage of trade, or the like acquired the popular sense of the same words; or unless the context in the particular evidently points out that they must immediate instance, and intention be of understood in some other special and peculiar sense.". to effectuate that in order the parties they have generally the contract, sense distinct a peculiar in respect rule from to - 5 - for the the that further insured, submitted the provision to have known when guard services had the Mr Chisambiro discovery by insured of the fact that the services of the watchman had temporarily or permanently been discontinued or that they were unavailable, did not relate to acts which were outside it being clearly understood the control of that t he warranty it is stipulated that the under paragraph (a) of insured shall employ a watchman and instructions issue to him It was respecting the patrol of the premises of the further submitted that granted such a situation, t he plaintiff ought temporarily or indeed were unavailable, and permanently been discontinued or that to thereupon connection it was also submitted that much as the plaintiff could not have had prior knowledge or noti ce respecting any strike by the watchman, he could nonetheless have known that the services the temporarily or permanently discontinued or had been services were unavailable and the to do. Mention defendant, as he was under an obligation so should also be made of what Scruton L. J. a "rougher test," in the construction of an exemption clause, see That appeal the case of Rutter - v- Palmer (1922) 2 K. B. 92. case involved a question upon the true construction of an owner's risk clause in a garage proprietors contract, in respect of which Scrutton L. J. expressed the following - that then report of that fact to the defendant. referred insured. report to as that fact to In First the defendant liability for exemption clause certain general "In construing an is not rules may be ap plied: exempted the negligence of his from ser van ts unless adequate words are used; secondly, the the exempting the defendant apart from liability of words must be ascertained; then the particular clause the only in question must be considered; is a liability of liabiity for negligence, the clause will more readily operate to exempt him.". the party pleading the exemption and if the the the such risk from against insured, subject matter insured's premises. I have already pointed out in this judgment, the plaintiff had As taken out a policy of insurance against loss or damage by theft involving entry to or exi t The defendant, as the insurer, undertook to indentify the plaintiff, terms, as exceptions and conditions contained in the policy. The watchman warranty, under consideration, was one of the conditions of the policy subject to which the defe ndan t had assumed his obligation to indemnity the I find plaintiff, in the event of loss or damage due to theft. the policy the watchman warranty be the expression warranty notwithstandi ng the in headnote If it were not for the watchman warranty, the defendant's liability would not have been indispute at all, it being admitted by both parties that indeed a theft has occurred at the plaintiff 's premises and that the plaintiff has sufferred loss and damage against which he is insured. the use of to that provision. application condition subject the the of to to of a Applying the rules of construction outlined above, do I say that - 6 - that Or do I hold (a) of the insured, namely, the patrol of the to instruct him on the watchman warranty? Paragraph the obligation of in denying liability by reason of the defendant should succeed the operation of the defendant liable to compensate the plaintiff notwithstanding the the watchman warranty watchman warranty? establishes the insured must employ a watchman to whom the insured must thereupon issue instructions concerning the patrol of the premises of the insured. Thus, the insured was under a duty to employ a watchman insured premises as and stipulated under paragraph (a) of the watchman warranty. If the insured does not do so, he would be in breach of the watchman It is not contended by the defendant that the insured warranty. in breach of the watchman waranty in respect of paragraph (a) was thereof. As a matter of fact, instead of directly recruiting a watchaman, the insured had entered into a contract with Securicor the (Malawi) Limited for premises of the insured. Let me note that the obligation of the in accordance with insured to instruct the watchman, so engaged, the provision of paragraph (a) of the watchman warranty, was in thereby. no way diminished or However, the that plaintiff was in breach of this part of the watchman warranty. That warranty, which is as follows - the provision of guard services at the construction of paragraph taken away the defendant is no contention by indeed altogether leaves me with (b) of there the "in the event of the services of such watchman being temporarily or permanently discontinued or unavailable the insurance shall be deemed to be suspended until the in Company shal 1 have been advised and writing to the continuance of the insurance obtained.". their assent this prov1s1on, What do I say, if any at all, is the plain, ordinary and popular the expression meaning of the services of such watchman being thereof "in the event of The temporarily or permanently discontinued or unavailable"? word "discontinued" is the opposite of the word "continued". In its plain, ordinary and popular sense, the word "continue" means- in particular and (a) (b) (to) "remain, keep last, go on, prolong" as defined by Collins Gem English Dictionary 1987 Ed; or in existence, carry on, 11 maintain, keep up, not stop (action etc), (to) in existence, take up, resume, prolong ... still be stay, not cease." as defined by The Concise Oxford Dictionary of Current English 7th Ed. by J B Sykes. those ascribed The word "discontinued" therfore has meanings which are opposite "continued". the word t o similarly, the word "unavailable" is the opposite of the word "available". In its plain, ordinary and popular sense the word "available" means - "continue" or to (a) "Obtainable, accessible" as defined by Collins Gem English Dictionary 1987 Ed; or - 7 - (b) "capable of being used, at one's disposal, within one's Dictionary of Sykes. as defined by Current English The Concise Oxfon J B 7th Ed. reach" by Subject to what I have just done and to some further explaination I have offered hereinbelow, I would view the interpretation or meaning of paragraph (b) of the watchman warranty in the light of the expression of UpJohn L J quoted above, namely, that I, too, deprecate any attempt to expound the meaning or further to define in everyday use, words these which are common words In that sense, I having a perfectly ordinary and clear meaning. also adopt laid down by Lord Ellenborough in the Robertson case, cited above, to the effect that - the rule of construction which was succinctly such as "the same rule of construction which applies to all other instruments applies equally to this instrument of a policy of insurance, viz , that it is to be construed according to its sense and meaning, as collected in the first place from the te rms used in it, which terms are in their plain, ordinary themselves to be understood and popular in they have generally sense, unless respect to the subject matter, as by the known usage of trade, or the like, acquired a peculiar sense distinct from the popular sense of the same words; or unless the the context evidently points out that particular the in order instance, and immediate intention of the parties to that contract, be understood in some other special and peculiar sense.". they must in to effectuate sense. should (b) of special thereof. it means, its context, to paragraph the 1 ight of t h e r e b y mu t u a 1 1 y , to be understood by their known temporarily or perm anently cease a proper construction of paragraph in any other peculiar and to merely ascribe Upon the watchman warranty, it cannot be reasonably contended and maintained that, the paragraph has words or any in trade expressions which ought am, usage or I the (b) of therefore, content watchman warranty such a meaning as would be consistent with the plain, ordinary and popular sense The paragraph, therefore, ought to mean, and that the parties had i n t e n d e d t h a t s h o u 1 d t h e s e r v i c e s a g re e d a n d ,, of the watchman to exist or thus not be obtainable or be indeed insurance between inaccessible, shall the contract of automatically be suspended upon the occurence of such a thing. This ought to be understood to be the intention of the parties in the light of the insured's obligations under paragraph (a) of the judgment, it did not matter who caused watchman warranty. the discontinuance or the services, as between the insured and the watchman. Either of them could give rise thereto, but what was crucial for the parties, was that upon suc h event occurring, or indeed upon such circumstances should insured shall automatically, have informed the Company of Insurance, the defendant, of those circumstances and the Company thereafter shall have assented in arising, thereupon, be suspended until the unavail ability of insurance the the relations of contract services In my them such the of - 8 - to subsequent continuance of the the contract of writing If, during the period when the contract of insurance insurance. the was suspended the Company of the occurrence of the circumstances for the suspension of the policy, and also without seeking the Company's assent in writing for the po l icy to continue to be effective, the policy would remain so suspended indefinitely. insured remains silent without notifying the the policy the period when loss or damage due to theft to be suffered by insured Any is so suspended cannot be during construed to be the liability of the Company. In such a case, the insured cannot be allowed to successfully claim compensation In the instant case, the theft occurred at the from the Company. insured's premises when in fact the services of the watchman had temporarily been discontinued by the watchman and such services Consequently, were, the theft interms of paragraph occurred during the suspension of the insurance policy. Like in the Starfire Diamond Rings Limited Case, the suspension need not the be of any substantial duration. parties that any discontinuance of the services of the watchman the should operate qualification 11 temporarily or permanetly discontinued. 11 Costs are for the defendant. therefore, unavailable foj the watchman warranty, insurance policy intention of insured. suspend (b) of It was hence the the the to • MADE in Chambers this 8th day of August, 1995, at Blantyre. ~ \ - v AK Tembo JUDGE