Yadis Nigeria Limited V. Great Nigeria Insurance Company Limited (2000)

LawGlobal-Hub Lead Judgment Report

ADEREMI, J.C.A. 

The Appellant who was the plaintiff in the Court below per paragraph 17 of the statement of claim, claimed from the Respondent who was the defendant the following:-

(a) The sum of N3,003,610.00 (three million, three thousand six hundred and ten naira) being the amount due and payable as at 11th January, 1993 to the plaintiffs as a claim due on Fire Policy No. FBP/1012369/L from the defendant on account of fire accident that completely destroyed its insured goods during the night of 10th and 11th January, 1993.

(b) The plaintiff also claims interest on the said sum of N3,003,610.00 at the rate of 30% per annum from 11th January, 1993 until judgment and final liquidation of the whole debt.

Briefly, the Appellant’s case as could be gleaned from its statement of claim, is that by virtue of its being a member of Group of Companies to wit: Messrs Yisa Afolabi and Brothers, it (the appellant) and their Chairman/Managing Director one Chief Yisa Afolabi have been having insurance policies with the defendant since 1983. On 6th October, 1992, by virtue of Fire Policy No.FBP/1012369/L, the Appellant and the Respondent entered into an insurance contract whereby the Appellant’s goods consisting of tyres of various sizes and contained in the sale shop which is an integral part of a business premises situate at 32, Enu Owa Street. Lagos were insured in the sum of N3,500,000.00 (three million five hundred, thousand Naira). Following the invasion in October and November, 1992 of Lagos Island (which embraces 32, Enu Owa Street, Lagos) by vandals, thieves and hooligans, the appellant had to move it’s stock from 32 Enu Owa Street, Lagos to the company’s new warehouse site at Block 3, Ijegun Road. Ikotun Egbe in the Lagos State. The Appellant informed the Respondent, in writing, of the movement. The Appellant’s stock got burnt out completely in fire incident which occurred during the night of 10th and 11th January, 1993. The appellant immediately informed the Respondent of the incident on 11th January, 1993, in writing. The Respondent’s reaction to the Appellant’s letter of notification of the incident was through its letter dated 13th January, 1993 wherein it contended that its investigation conducted through its Surveyor and claims Manager revealed that no fire incident occurred at 32, Enu Owa Street, Lagos and thus there was no loss under the policy. The Respondent through another letter dated 3rd February, 1993 maintained that the policy only covered stock at 32, Enu Owa Street, Lagos and further denied the receipt of the letter notifying it of the change in location. The Appellant replied, in writing, contending that the Respondent received the letter addressed by it notifying the Respondent of the change in location. The total of the balance in stock of the Appellant at 3 Ijegun Road, Ikotun, Egbe at the time of the fire incident was N3,003,610.00.

The defendant/respondent’s case as stated in its statement of defence is that the appellant on 21st September, 1992 made a proposal to the Respondent to take out a fire policy insuring its goods at 32, Enu Owa Street, Lagos. Being satisfied as to the location where the goods were to be warehoused and the goods themselves, the Respondent issued out a fire policy effective from 21st September, 1992 to cover the goods; thus concluding a contract of insurance with the Appellant. Sequel to the sealing of the contract, the Respondent was notified, in writing that there was a fire incident which gutted the goods of the appellant. The respondent promptly caused the insured premises to be inspected by its surveyor. The inspection revealed that there was no fire incident at 32, Enu Owa Street, Lagos, the place insured with the Respondent. This was communicated to the Appellant. The Respondent further averred that it was surprised to receive a letter dated 15th January, 1993 from the Appellant which stated that it (appellant) had changed its business address to Block 3, Ijegun Road, Ikotun Egbe, Lagos contending that it appellant had earlier informed the Respondent of the change of business address by a letter dated 2nd November, 1992. The Respondent further contended that the photocopy of the said letter of 2nd November, 1992 was the first notification to it by the Appellant of the change in the business address. The Respondent refused all entreaties by the appellant to get it to settle the claim. Its refusal was predicated on the fact, as found by it, that there was no fire incident at 32, Enu Owa Street, Lagos. After all efforts to get the defendant/respondent settle the claim failed, the matter proceeded to trial before Obadina, J.(as he then was) who after taking evidence on both sides and the addresses of Counsel on both sides, in a considered judgment, dismissed the plaintiff/appellant’s claim in toto. In the course of the judgment the learned trial Judge held inter alia:-

“From the pleadings, the evidence led by the parties and the addresses of Counsel to the parties, it is common ground that the Fire Policy No. FBP/1012369/L dated 8th October, 1992 – Exhibit C, the parties entered into an insurance contract, whereby the defendant company insured the plaintiff’s stocks and materials in trade consisting of tyres of various sizes stocked at the plaintiff’s shop 32, Enu Owa Street, Lagos.

It is also not in dispute that by a letter dated 11th January, 1993, the plaintiff informed the defendant that fire incident occurred at the plaintiff’s warehouse during the night of 10th and 11th January, 1993…

Since the defendant had made an issue of the receipt of the said document – the original of Exhibit D, I think the plaintiff has a duty to prove that the original existed and it was actually delivered to the defendant. Honestly, I do not think the plaintiff has discharged that duty by merely tendering Exhibit D. I think the cloudy air about the existence and delivery of the alleged original of Exh D could have been cleared by the person who delivered the document to the office of the defendant.

Since the person was not called to give evidence and the delivery hook used by the plaintiff/specifying the particulars of the letter and clearly showing that it was received and by who, I find it very difficult to hold and I am unable to hold that the original of Exhibit ‘D’ was received by the defendant that the plaintiff had removed the insured goods from 32, Enu Owa to Block 3, Ijegun Road, Ikotun Egbe…I do not think that the stamp, print of the defendant’s company on Exhibit D ipse dixit, established that the original Exhibit D was received by the defendant company…

In that regard, it is my view that in so far as the sanction of the defendant in respect of the removal of the insured goods is not endorsed upon the policy – document Exhibit C before the occurrence of the alleged fire incident, the insurance has ceased to attach to the insured goods. Accordingly, the loss or damage is not covered by the policy.

I am perfectly in agreement with the learned counsel that the defendant has failed to prove forgery on the part of the plaintiff with respect to Exh. D – the letter alleged to have been sent to the defendant by the plaintiff…

On the evidence, it is my view that the plaintiff is in breach of the documentary evidence warranty contained in the policy Exh. C.

On the totality of the evidence, it is my view that the loss in this case is not covered by the policy.