Court name
Court of Appeal
Case number
CIV APP 9 of 1969

Intra Bank Societe Anonyme v Royal Exchange Assurance Company (CIV APP 9 of 1969) [1970] SLCA 5 (29 January 1970);

Law report citations
1970-71 ALR S.L. 9
Media neutral citation
[1970] SLCA 5
Case summary:

Insurance-property insurance-bankers' and brokers' policies-"due and proper precaution for safety of money in transit"-requires not merely reasonably safe security system but continuous supervision by insured-appeal dismissed.

Coram
Bankole Jones, PJ
Dove Edwin, JA
Marcus-Jonas, J

INTRA BANK SOCIETE ANONYME v. ROYAL EXCHANGE
ASSURANCE COMPANY
CouRT OF APPEAL (Sir Samuel Bankole Jones, P., Dove-Edwin and
Marcus-Jones, JJ. A.): January 29th, 1970
(Civil App. No. 9/ 69)
[I] Insurance-property insurance-bankers' and brokers' policies-"due
and proper precaution for safety of money in transit"-requires not
merely reasonably safe security system but continuous supervision by
insured: A provision in a policy of insurance that the "insured shall
take all due and proper precaution for the safety of the money in
transit" means not merely that the insured should provide a reasonably
safe system of security but that there should be continuous
supervision of that system by the insured on a minute-to-minute basis
(page 25, line 21-page 26, line 13).
[2] Insurance- property insurance -bankers' and brokers' policies -
meaning of "in transit"-goods cease to be in transit if before delivery
person delivering them deviates to undertake unconnected transaction:
When goods are being taken from one place to another they cease to
be in transit for the purpose of transit insurance if, having taken the
goods to their proper destination but before delivering them, the
person taking them deviates to transact some other business wholly
unconnected with the delivery (page 24, line 41-page 25, line 14).
The appellants brought an action against the respondents in the
Supreme Court to recover insurance monies payable under a policy
between them, and damages for breach of the contract of insurance.
The appellant bank was insured with the respondent company
against loss of money in transit by the fraud or dishonesty of its
employees if accompanied by the simultaneous flight of the thief with
the money in his possession. The policy also stated that it was a
condition precedent to the liability of the respondents that all due
and proper precautions should be taken for the safety of the money in
transit.
20
INTRA BANK S.A. v. ROYAL EXCHANGE ASSUH. CO., 1970-71 ALH S.L. 20
C.A.
The management of the appellant bank authorised a bank official
to take money and deposit it at the Bank of Sierra Leone and
instructed another employee to drive him there. Before leaving the
driver placed the box containing the money in the boot of the car,
which he then locked. When they arrived at the Bank of Sierra Leone 5
a representative of another bank was transacting business there and
in order to save time the appellants' official told the driver to take
him to another building, where he left the driver and the car. After
about 10 minutes he returned to the car and found the driver gone;
he came back, however, almost immediately and they proceeded to 10
the Bank of Sierra Leone. On arrival the driver unlocked the boot
but the box containing the money was gone. The driver was later
charged with and convicted of its theft.
The appellants brought an action in the Supreme Court to recover
compensation under the insurance policy, and damages for breach of 1.5
contract. The court (Tejan, Ag. J.) held that the money was in transit
at the time of the theft but that since the theft was not accompanied
by the simultaneous flight of the thief the loss did not fall within the
scope of the policy, and he dismissed the action. The proceedings in
the Supreme Court are reported in 1968-69 ALR S.L. 202. 20
The appellants appealed to the Court of Appeal where they again
maintained that the theft was covered by the policy of insurance.
They further maintained that a reasonable system had been devised
to ensure maximum security of the money whilst in transit, and therefore
there was no negligence on their part. 25
Cases referred to:
(1) Crows Tmnsp. Ltd. v. Phoenix lissur. Co. Ltd. , [1965] 1 W.L.R. 383;
[1965] 1 All E.R. 596, distinguished.
(2) Hepburn v. A. Tomlinson (Hauliers) Ltd., [1966] A.C. 451; [1966] 1
All E.R. 418, distinguished.
(3) Pearson v. Commercial Union lissur. Co. (1876), 1 App. Cas. 498; 35
L.T. 445.
30
Marcus-.lones for th e appellants; 35
S.H. Harding for the respondents.
SIR SAMUEL BANKOLE JONES, P., delivering the judgment
of the court :
This is an appeal from a judgment of the Supreme Court (Tejan, 40
Ag.J.) in which the plaintiff/ appellant's claim for the sum of Le28,500
21
THE Al'lllCAN LA \V HEl'UHTS
and damages for breac.:h of contract against the defendant/respondent
was dismissed.
The facts briefly are as follows. On or about May 28th, 1963 the
appellant, a banking company carrying on business in Sierra Leone,
5 entered into a contract with the respondent, an insmance company
also carrying ou business in Sierra Leone. As a result of this, a policy
of insurance was issued by the respondent by virtue of which the
respondent undertook and contracted with the appellant to insure
the appellant against loss of money, cheques or stamps. The operative
10 part of the policy of insurance contained the following provision:
"Now this Policy witnesseth that subject to the terms exceptions
and conditions contained herein or endorsed hereon the
Corporation will make good to the Insured :-loss of money
cheques or stamps as described in the Schedule in this policy
15 (hereinafter referred to as 'money') by
(1) any cause whatsoever in the circumstances or situation
described in the said Schedule;
(2) fraud or dishonesty of employees-
(a) during transit as described in the said Schedule
20 if accompanied by simultaneous flight of the thief
while having such money in his or her possession or
(b) while on the insured's premises for the payment of
wages salaries or other earnings.
Exceptions
25 Any consequences of-
(a) war invasion act of foreign enemy hostilities (whether
war be declared or not) civil war rebellion revolution
insurrection or military or usurped power;
(b) riot or civil commotion loss or pillage in connectiou
30 therewith."
On January 7th, 1966 the foreign exchange manager, an employee
of the appellant named Fattallah was given, according to him, "specific
instruction" by the appellant's manager to take the sum of Le28,500
and deposit it at the Bank of Sierra Leone, situated at \'Vestmoreland
35 Street. The money had been placed for security reasons in a box
which was locked with a key and placed in the boot of the car. The
key to the box was kept by Fattallah and the key to the boot by the
driver of the car. The manager of the appellant, after instructing
Fattallah to go to the Bank of Sierra Leone, instructed the driver, after
40 the money had been put in the boot of the car and locked, to drive
Fattallah to the Bank of Sierra Leone at Westmoreland Street. These
22
1NTH.A HANK S.A. v. HOYAL EXCHANGE ASSUH. CO., 1870-71 ALI\ S.L. 20
C.A.
instructions were carried out to the letter. However, when they got
to the Bank of Sierra Leone, Fattallah discovered that Barclays Bank
was transacting some business there. The security guard on duty told
him to wait and take his turn after Bm·clays Bank. Nevertheless,
according to Fattallah himself, in order to save time, he decided 5
to go to the old building of the Bank of Sierra Leone, Leone
Building, where old currencies were being changed to new ones. He
had a sum of Le592.00 in old currency then with him and he asked
the driver to drive him to Leone Building, also in Westmoreland
Street, a short distance away. When he got there, he left the driver 10
in charge of the car and was away for 10 minutes transacting the
business of changing old notes to new ones. On his return to the
street, he saw the car near the building but unattended for fully one
minute and the driver was nowhere to be seen. After that lapse of
time, he saw the driver emerging from the entrance of the building. 15
He boarded the car and was driven to the Bank of Sierra Leone a
second time. On opening the boot of the car, it was discovered that
the box containing the Le28,500 was gone. At a later date the driver
was charged with the larceny of this sum. He was convicted and
sentenced to imprisonment. On the evidence before him, the learned 20
judge found on the balance of probabilities that the driver was the
thief.
Throughout the conduct of this case, both in the court below and
in this court, it was conceded that the appellant founded his claim
under provision 2 (a) of the policy, supra, namely that the loss was clue 25
to the fraud or dishonesty of the appellant's employee, the driver.
The policy is a "cash in transit" policy of insurance. In the
Supreme Court, Tejan, Ag. J. found that the money was "in transit"
when it was stolen. This was what he said (1968-69 ALR S.L. at
206): 30
"The fact that Fattallah went to Leone Building where he stayed
for 10 minutes, in my view, does not terminate transit. I hold
from the evidence that the money was in transit up to the time
when the car arrived at the Bank of Sierra Leone on the second
occasion." 35
Mr. Hudson Harding, in spite of the fact that judgment went in
his favour in the court below, filed a notice in this court intimating
that he would contend that the learned judge was wrong in law in
finding that the money was in transit when it was discovered to be
lost. The first question therefore for this court's determination is 40
whether or not the money was in transit when its loss was discovered.
23
THE AFRICAN LAW REPOHTS
Reference to the evidence, I think, may help in arriving at an answer.
These are a few extracts from Fattallah's evidence:
1. "On January 7th, 1966 I was given speci£c instructions to go
to the Bank of Sierra Leone.
5 2. The manager told me to take the money to the Bank of Sierra
Leone. The manager told the driver to take me to the Bank
of Sierra Leone after the money had been put in the boot.
3. Because I wanted to save time I drove with the amount of
Le28,500 from the Bank of Sierra Leone to Leone Building."
10 The question which now arises is, had Fattallah any right for
the reason he gave, after arriving at his destination to drive out again
with the money, to transact business which was not even collateral or
incidental to the business of depositing such a large sum at the Bank
of Sierra Leone? It was argued that in the circumstances, he exercised
15 a discretion as to whether he should wait and take his turn at the
Bank of Sierra Leone or, to save time, hurry out to transact another of
his company's business. I do not, speaking for myself, think that such
a decision on his part can be described as an exercise of discretion.
In my view he was flagrantly disobeying his manager's expressed
20 instruction. How did he know that when he returned there would
not be other customers waiting to transact their own business and that
he would therefore have to stand further down the queue to await his
turn? What would he have done then : Gone out again to transact
some other business?
 Several cases were cited in an attempt to assist the court as to the
meaning of the expression "in transit", but I am afraid none of them
was very helpful. There were, for example, Cmws Transp. Ltd. v.
Phoenix Assur. Co. Ltd. (1) and Hepburn v. A. Tomlinson (Hauliers)
Ltd. (2). In the former case, part of goods delivered for transportation
30 were stolen. It was found that the plaintiff had taken all reasonable
steps to safeguard these goods. He had temporarily housed them
before transporting them and Lord Denning expressed the view, which
was approved by the other judges of the appeal court, that such
temporary housing, whether on or off the vehicles, constituted the
 goods being in the course of transit. In the latter case, goods had
reached their destination and it was held by the House of Lords that the
goods were still on risk under the policy when they were stolen, as the
period of transit was de£ned to include unloading and this did not
come to an end until the goods were unloaded. The theft took place
 before the goods were unloaded.
I am afraid that the instant case, as far as my researches go,

INTRA BANK S.A. v. ROYAL EXCHANGE ASSUR. CO., 1970-71 ALR S.L. 20
C.A.
stands alone and solitary on its own platform, without companionship
of any kind. Fattallah had come to the journey's end and he ought
to have waited to complete the transaction at hand. If for the reason
he gave, he thought it wise to take the money out again in the car, I
think from that moment it cannot be said in fact and in law that the 5
money was in transit when it was found missing on his second visit
to the Bank of Sierra Leone. To construe the policy as permitting the
appellant, having reached the destination where the money should
be deposited, not to so deposit it when the Bank was open and
holding itself ready and willing to transact business with its customers, 10
and then to drive out with the money in the car in order to transact
some other business wholly unconnected with such a deposit, would
be to add a new condition to the policy which could not be done. See
Pearson v. Commercial Union Assur. Co. (3).
It is, therefore, not without some feelings of sympathy for the 15
appellant, that I have come to the conclusion that the money was not
in transit at the moment it was discovered missing when the boot of
the car was opened after the car's second excursion to the Bank of
Sierra Leone. It naturally follows from this that the appeal cannot
succeed.
But even if the learned judge was right in his finding that the
money was in transit, this court would have to be satisfied that its
loss was not due to the negligence of the appellant and that the theft
was accompanied by simultaneous flight of the thief while having such
money in his possession. The learned judge found against the appel- 25
lant on these two issues and I think he was right. Condition (1) of
the policy reads : "The insured shall take all due and proper precaution
for the safety of the money in transit." Quite a lot of argument was
adduced as to whether or not the appellant had devised a reasonable
system to ensure maximum security of the money whilst in transit. I 30
think that on the balance of probabilities the system was reasonably
safe. It had proved sufficiently safe and reliable on past occasions
when Fattallah and this same driver had transported huge sums of
money from the appellant's bank to the Bank of Sierra Leone. However,
I consider that condition (1) ought to be construed as meaning 35
that, even allowing for the existence of a reasonably safe system, the
person in charge of the money (Fattallah) ought to keep a vigilant eye
on the minute-to-minute operation of the system. In other words
there was a continuous duty cast upon him, metaphorically speaking,
to keep the money in his sight from one moment to the next until its 40
final deposit at the Bank of Sierra Leone. He did not do so. He

THE AFRICAN LAW REPORTS
took his eye off the money when he left the car with the money in it in
the custody of the driver for 10 minutes in order to transact a business
which had nothing to do with the deposit of the money. The driver,
after all, was a lowly employee of the appellant against whom the
5 latter must guard itself against fraud or dishonesty. It so turned out
that this employee became the thief. He was not found in charge of
the car at least for a whole minute when Fattallah came out to carry
out the now belated specific instruction of his manager. Had he
diligently carried out the specific instruction of the appellant, as
10 indeed he had done no doubt with diligence on previous occasions,
this case may never have come to our courts. I therefore find that
Fattallah was negligent in his duty and contravened condition (1) of
the policy and such negligence must be imputed to the appellant.
But it was urged by Mr. Hudson Harding in reply to the submission
15 of Dr. Marcus-Jones that even if the driver was one of the two
authorised employees of the appellant entrusted with control and
custody of the money in the boot (Fattallah being the other), the
driver's action in leaving the car unattended spells negligence on his
part and consequently on the part of the appellant. Even though I
20 may be disposed to favour such an argument, yet I find that Fattallah
was the person entrusted with the safe custody of the money, not
Fattallah and the driver jointly or jointly and severally.
Dr. Marcus-Jones submitted that there was proof on the part of
the appellant that there was simultaneous Hight of the thief while
25 having the money in his possession. On the totality of the evidence
however, I find that there was no proof of the Bight of the thief while:
having the money in his possession. I agree with the learned judge
that the words "simultaneous Bight" ought to be construed in their
ordinary and popular meaning, and so construed the learned judge
3_0 found that the theft was not accompanied by simultaneous flight of
the thief while having the money in his possession. , ·" .
The conclusion I have therefore come to is that the appellant's
claim does not fall within the terms of the policy and the appeal is
accordingly dismissed with costs.
 Appeal dismissed.