Addison United Nigeria Limited V. Lion Of Africa Insurance Limited (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Judgment)

The Appellant as Claimant in the High Court of Lagos State commenced an action against the Defendant now the Respondent by writ of summons filed on 28/6/02 wherein he claimed the sum of N23,207,250.00 (twenty three million, two hundred and seven thousand, two hundred and fifty naira) from the Defendant being the value of the goods damaged by fire which goods were insured with the Defendant under Fire and Special Perils Insurance Policy No. 59/4/424061/J and interest on the said sum at the rate of 21% per annum from 13th April 2001 till payment.

The parties filed and exchanged pleadings. Each party called one witness at the end of which written submission were filed and adopted. In a considered judgment the learned Trial judge in the three Issues formulated for determination found under Issue 1 & 2 that the Claimant had insurable interest in the sunflower oil insured with the Defendant vide Exhibit ‘P1’ and that the contention on whether Claimant paid custom duty was an allegation of a criminal offence which must be proved beyond reasonable doubt and that the onus was on the Defendant to put credible and precise evidence of the commissions of that offence before the court which he failed to prove the criminal offence. On the Third Issue the learned Trial judge held:

“the Claimant failed to prove in any manner how many cartons of the sunflower oil insured in Exhibit P1 was destroyed by the inferno of 13 April 2001. It failed to prove its claim and I so hold in all therefore the Claimant’s claim fails in its entirety and is accordingly hereby dismissed”.

The Claimant dissatisfied with the decision of the learned Trial judge filed a Notice of Appeal on 22/05/06 containing 5 Grounds of Appeal.

In compliance with the Rules and Practice of the Court of Appeal learned counsels filed and exchanged Briefs of Argument after the Appeal was entered. At the hearing of the Appeal on the 26-4-10 the learned counsel for the Appellant Mr. M. N. O. Olopade adopted the Appellant’s Brief deemed filed and served with leave of court on 24/2/09.

The Respondent’s counsel Mr. Opeyemi Usiola adopted the Respondent’s Brief deemed filed and served with leave of court on 01-07-09.

Learned counsel for the Appellant in his Brief formulated the following Four Issues for determination:

“1. Whether the trial court was right to have based its decision on Exhibit P2 REJECTED which was a document tendered but rejected.

2. Whether the lower court was right to have held that failure of the appellant to keep stock card was a breach of fundamental term of the insurance contract and that breach alone was enough to repudiate the contract in view of the provisions of the Insurance Decree of 1997 which was the governing law when the contract was entered into by the parties.
3. Whether upon the totality of the evidence before the lower court, the plaintiff had failed to prove its case for liquidated demand.
4. Whether the lower court was right to have held that reasons given by the respondent for termination of the contract of insurance were wrong but nevertheless found that the appellant was not entitled to judgment”.

The learned counsel for the Respondent Mr. Opeyemi Usiola in the Respondent’s Brief distilled Four Issues which reads as follows:

“1. Whether it could be said that the trial judge premised his decision on exhibit P2 marked “rejected” because of his passing remarks on the said exhibits.

2. Whether the failure of the Appellant to maintain and keep store card/book in accordance with the policy, constituted a fundamental breach which on its own, entitled the Respondent to repudiate the contract.
3. Whether upon the totality of the evidence before the lower court, the Appellant had failed to prove its claims for liquidated demand.
4. Whether it could be said from the judgment that the court actually found that all the three issues raised by the Respondent failed and nevertheless dismissed the Claimant’s claim”.

The Four Issues raised in the Respondent’s Brief are similar except for the use of phrase and introduction of the Insurance Act by the Appellant in Issue 2. However, I will adopt the Issues formulated by the Appellant under Issue 1, 3, & 4 and adopt Issue 2 as formulated by Respondent counsel in the determination of this appeal and comment on the Issue of the “Act”. I will briefly state the facts that lead to the present case. The Appellant in consideration of the premiums paid by them to the Respondent to insure ideal vegetable oil worth N255,750,000.00 (two hundred and fifty five million, seven hundred and fifty thousand naira) was issued with a Fire and Special Perils Policy of insurance with No. 59/4/424061/J dated 28 of Sept., 2000. The quantities of the ideal vegetable oil were packed in a warehouse under the Appellant’s control. On Friday the 13th April, 2001, the stored ‘oil’ were destroyed by fire which gutted the warehouse. The Appellant notified the Defendant of the loss and damage. The Respondent on notification engaged the services of an assessors/investigators, Messrs Kek Nigeria Limited, the company investigators who in the cause of investigation demanded from the Appellant’s Sales Manager the storage records, or a register or invoice which could show the actual balance of the cartons of the goods which existed in the warehouse as at April 12th, 2001 before the fire incident of April 13, 2001. The sales manager could not supply the documents requested by the investigators. The Respondent based on the general report of the company Kek Nigeria Limited and other reasons wrote to the Appellant declining liability to pay for the loss of the goods by fire.

The Appellant then proceeded to the High Court and filed the present case.

Under Issue One raised in the Appellant’s Brief, whether the trial court was right to have based its decision on exhibit 12 which was a document tendered but rejected, it is the submission of learned counsel to the Appellant Mr. M.N.O. Olopade that the learned Trial judge relied heavily on the rejected document before holding that the Appellant was in breach of exhibit P1 and thereby occasioned a substantial miscarriage of Justice because without the said reliance the court would have found for the Appellant.