Yadis Nigeria Limited V Great Nigeria Insurance Company Limited (2007)

LAWGLOBAL HUB Lead Judgment Report

S. N. ONNOGHEN, J.S.C

This is an appeal against the judgment of the Court of Appeal holden at Lagos in appeal No. CA/L/390/99 delivered on 30th October, 2000 in which it dismissed the appeal of the appellant against the judgment of the Lagos State High Court in suit No. LD/960/93 delivered by O.O. Obadina J. (as he then was) on the 14th day of November, 1997.

On the 8th day of October, 1992 the appellant and the respondent entered into an insurance contract by which the appellant insured against fire, the appellant’s stock and materials in trade consisting of tyres of various sizes and contained in the sales shop, forming part of a building occupied as business premises by the appellant at No. 32, Enu-Owa Street, Lagos for the sum of N3.5 million. It is the case of the appellant that sometime between October and November, 1992, certain vandals also known as “Area Boys” began acts of stealing and/or destruction of properties on Lagos Island where No. 32, Enu-Owa Street is situate necessitating the appellant re-locating the insured goods from No. 32, Enu-Owa Street Lagos to another location at Block 3, Ijegun Road, Ikotun-Egbe, Lagos State. Appellant contends that it wrote a letter dated 2nd November, 1992 to the respondent informing the respondent that the appellant had moved the insured goods from No. 32 Enu-Owa Street, Lagos to Block 3, Ijegun Road, Ikotun-Egbe, Lagos State and that the said letter was delivered to the office of the respondent on the 7th day of December, 1992. Appellant further stated that during the night of 10th and 11th January, 1993 a fire incident occurred at the appellant’s new warehouse at Block 3, Ijegun, Ikotun-Egbe resulting in the complete destruction of the insured goods -which incident was reported to the respondent who denied liability.

On the other hand, the respondent denied receipt of the letter allegedly informing it of the movement of the insured goods from the insured premises to the new location but admitted receipt of the letter notifying it of the fire incident which resulted in the respondent dispatching its surveyor and claims – manager to No. 32, Enu-Owa Street, Lagos where the insured goods were stored under the policy to access the loss but the said officers reported that there had been no fire incident at the said address which information was conveyed to the appellant vide a letter dated 13th January, 1993. On the 15th day of January 1993 the appellant wrote to inform the respondent that appellant had changed the location of the goods from 32, Enu-Owa Street, Lagos to Block 3, Ijegun Road, Ikotun Egbe, Lagos State and alleged that it had earlier informed the respondent of the change through a letter of 2nd November, 1992.

It is the case of the respondent that it got the information that the appellant had moved to another location for the first time from the appellant’s letter of 15th January, 1993 to which a Photostat copy of the letter of 2nd November, 1992 was attached. The respondent contends that it never received the letter of 2nd November, 1992. Appellant thereafter prepared a list of the properties burnt in the fire incident and forwarded same to the respondent and thereafter instituted an action in suit No. LD/960/93 in which it claimed the following reliefs:

“17. WHEREOF the plaintiff claims from the defendant the sum of N3,003,610.00 (Three Million, Three Thousand and Six Hundred and Ten Naira) being the amount due and payable as at 11th January, 1993 to the plaintiff as a claim due on Fire Policy No. FBP/1012369/L from the defendant in result of the fire accident that completely destroyed the insured goods during the night of 10th and 11th January, 1993.

And the plaintiff also claims interest on the said sum of N3,003 ,610. 00 (Three Million, Three Thousand and Six Hundred and Ten Naira) at the rate of 30% per annum from 11th January, 1993 until judgment and thereafter at the rate of 30% Per annum until final liquidation of the whole debt claim together with costs.”

As stated earlier in this judgment, the appellant, as plaintiff in the trial court, lost the action and consequently appealed to the Court of Appeal holden in Lagos and lost. The present appeal is therefore a further appeal by the plaintiff. In the appellant’s brief of argument filed on 22/5/02 by learned counsel for the appellant, the following issues have been identified for determination:-

“1. Whether the Court of Appeal Lagos by failing to pay attention to or make a consideration of the appellant’s reply brief dated 27th April 2000 in the hearing and determination of the appellant’s appeal before it had not denied the appellant of its right to fair hearing thus occasioning a failure of justice.

2 Whether the single issue formulated by the court below upon which it determined the appeal truly captured and embraced the six germane issues formulated by the appellant and whether in the light of that, the court could be said to have done substantial justice in this case.

3. Whether the Court of Appeal Lagos was light in holding that the only credible evidence which can fix the respondent company with the knowledge of the content of the original of exhibit ‘D’ is the signature of the designated official of the company.
4. Whether because of the mere fact that the respondent failed to give its consent to the relocation of the insured goods to a new location before the occurrence of the risk insured against, the insurance policy became vitiated by that fact.

5, Was the court below right in law to hold that the appellant did not prove that the original of exhibit was delivered to the respondent notwithstanding the trial court’s holding that the said exhibit is not a forgery, a holding the court below did not reverse.” It is important at this stage, to mention the fact that the respondent has cross appealed against the decision of the Court of Appeal and filed a cross appellant’s brief on 5th October, 2006 in which learned counsel for the respondent/cross appellant formulated a single issue for determination. The issue is as follows: “Whether in the light of clause 8(c) of exhibit C, the Court of Appeal was correct in its pronouncement that

‘if exhibit ‘D’ has been signed by the official of the defendant/respondent that would have sufficed for proof that the original was delivered and the mere fact that the defendant/respondent later failed or refused to sanction the relocation of the stocks by enforcing the policy to that effect will not avail it.’”

On the other hand, learned counsel for the respondent formulated the following issues for the determination of the main appeal:

“( i) Whether the failure of the appellant to seek and obtain the leave of this Honourable Court to appeal against the concurrent findings of fact of the Court of Appeal and court of first instance and to disclose exceptional circumstances pursuant to which it may appeal against the concurrent findings of fact of the court below and the court of first instance renders this appeal incompetent.