As he was yet discussing with Mr. Okoro, he swore, one Z.O. Olayele the "Ondo man" entered and produced his insurance agreement which he observed was with the said Continental Insurance Co. Ltd. Plaintiff said that after seeing the cover note. Exhibit D, he was convinced that the defendants were the authorized agent of the Continental Insurance Co. Ltd. It was signed by the defendants as authorised agents.

We must pause here to point out that the Cover Note, Exhibit D bears a signed official stamp of the respondents, stamped over the portion of the cover note with the printed words "Authorized Representative".

Exhibit E which was the certificate of insurance, he said, was later sent to him.

On 14th June 1970 the lorry was involved in an accident on the Lagos-Kaduna Road, near Kaduna. It was damaged beyond repairs and had to be towed to Kaduna. He reported the accident to the General Manager of the Ibadan Branch of the defendant company who directed him to No. 37, Sapele Road, Benin City, which he told him was the office of the Continental Insurance Co. Ltd, He went there but there was no such insurance company there. Instead, he saw boldly written on a sign board exhibited there 'Paradise Pools Home" with pools papers scat¬tered all about. He hastily traveled back to Ibadan and reported back to Mr. Okoro the General Manager of the Ibadan Branch of the defendant company. He threat¬ened to report to the Police whereupon Mr. Okoro directed him to go to Lagos and meet the overall boss of the defendants. Mr. Okoro traveled with him to Lagos. At Lagos, at the Bristol Hotel, they met the boss, the Managing Director, one Mr. Igbinedion. They narrated the whole thing to him and after Mr. Okoro informed him that the plaintiff was threatening to report to the Police, Mr. Igbinedion fumed at the mere mention of the Police. He advised the plaintiff against going to the Police and informed him he should go back to Ibadan with Mr. Okoro whom, he said, he would contact by phone as to terms of settlement when he got back to Benin. Plaintiff swore that when the General Manager Mr. Okoro saw that he was boiling with rage after returning from Benin to search for the office of the Insur¬ance Company, Mr. Okoro said that he knew that there was no such insurance company but that he had instructions from his Managing Director to carry on the insurance of vehicles bought from them with the said Continental Insurance Com¬pany Ltd. he stated that their Managing Director did not usually take advice and advised the plaintiff that he should rather find ways of getting his money back. He cautioned him that dealing with "a big man" was always difficult and that he should not have resort to the police. Several attempts were later made by the defendants, he said, to settle this matter out of court, but this was not to be as the defendants failed to implement the several promises they made. He therefore instructed his solicitor to take action which he did.

The case of the defendants, as placed before the court by their District Man¬ager, Ibadan, one Gabriel Omoruyi Okundaye, and their Managing Director, Gabriel Osawame Igbinedion was a denial that the plaintiff ever met the Managing Director of the defendants at the Bristol Hotel; a denial that the Managing Director, at any time, either in his personal capacity or in his capacity as the Managing Director ever instructed the Branch Manager, Mr. Okoro, to insure the plaintiff's vehicle with the Continental Insurance Company Ltd. or at all. They swore that the Board of Directors of the defendants never at any time took a decision that insur¬ance of vehicles should be carried out by the company. It was no part of the duties of a branch manager to receive premium in respect of insurance. If a branch Man¬ager went out of his way to collect insurance premiums he would be acting out¬side the duties of his office. The defendants were not insurance brokers for the Continental Insurance Co. Ltd. While Mr. Igbinedion denied as untrue that Mr. Okoro was ever the branch Manager of the defendants at Ibadan from 1969 to later part of 1970. Mr. Okundaye admitted that Mr. Okoro was the branch Manager be¬fore him at Ibadan but said he was later dismissed. He said he was an Urhobo man. He was in a position to know Mr. Okoro as he said, Mr. Okoro was his brother-in-law. The defendants sought to prove that the business of insurance was not one of those authorised by their Articles and Memorandum of Association.

The case was heard and determined by the learned trial judge, and fought by 'the parties before him, on the basis of vicarious liability of the defendant company based upon the acts of Mr. Okoro as a servant or agent. No amendment of the pleadings was either sought for or made.

The trial Judge dismissed the case on the grounds: