Notcutt (overseas) Limited v Nakanga & 2 others (MSCA Civil Appeal 8 of 1981) [1981] MWSC 1 (3 November 1981)

ACT Eee * Te ae ; Liity An LL TE BLA NOYRE eee Mm. S. C. A. CIVIL eee eRe ae cee “ee ~ NO. BE ree CL IVEEAN § ° NOTOUT? (OVERSEAS) LIMITED ...005. - and =< Ee NARANGA AND TWO OTHERS ®ecoo 8 6 O 8 - am ql DAT Ard Oat ei OF A “+ WA 3 ¥ Bitte toe ene os agate od a Sete asa ot ; Al ae ’ 8 OF 1981 ‘- PPELLANT eootcoeo oe eo Oo GC BD Hoe Oe ~ EUISPON DENT @oeeoneece cs coco 8 @ Before: The Honourable the Chief Justice (Mr. Justice Sinner) —_ ““. The Honourable Mr. Justice Villiers, J. A. The Honourable Mr. Justice Panda, JA. DSavjeni of Counsel for the Appellant Mhoni, Legal Aid, Counsel for the Respondent Official Interpreter s Kadyalcale Court Reporter $ Manda AEE RE RRS RA AS ORR GL a ae ca mae JUDGMENT © Sicimper, Cod The history of this matter is as follows: the respondent, who is a second defendant in the proceedings in ‘the High Court, took out a third party notice and an application was made by the appellant, who is the third . party named therein, to set aside the noticee The learned Registrar who heard the matter, re fused to do so. There was an appeal to a judge in chambers by the appellant & a against the decision of the Regist dismissed. The appellant now appe rar. als to The appeal was this court. The appellant is an insurance DrOleet, and bo th before the Registrar and the Judge below the matter proceeded on the basis that an insurance broker is the agent of the insurer. It is conce ced in this court, by law an insurance the position in Br. Maoni for the respondent, that in broker is not the agent of the insurer. law is, and it is well settled law, that an insurance the cat broker is the agent of insurer’ see Avcglo-Afri insured ana Merchants not of the and Another ve os Ltd. ' ULE Bayley and Others (1970), 1 “Bll, the Tatest case on the point. Qf eccccece PS In the instant case the decision of the judge below was on the basis that the appellant was the agent of the insurance company and, in law this is not so. he appeal succeeds. The third party notice is set aside. The proposition of law upon which we have based. our decision in this appeal was not taken by the appellant either before the Reristrar or the judge in Chambers. ‘The grounds of appeal before this court do tale the point.. The appellant has succeeded on a point not raised below and in these circumstences we feel that the correct order to make is that eacn party pays its own costs. . ‘. DELIVERED at Blantyre this 3rd day of November, 1981. ; iV , ‘i ; . ‘ Val | Mf js : _ VAN j Aji RY Ld LA i ‘ Sinner, Coed. - | ¥. * “y oR ; Villiera, J. A. so ye a a ce a ea Banda, JA.