African Development Insurance Company Limited V. Zumax Nigeria Limited (2008)

LawGlobal-Hub Lead Judgment Report

HUSSEIN MUKHTAR J.C.A.

This is an interlocutory appeal against the ruling of the Federal High Court, Lagos Division (Coram Dan Abutu, J) delivered on the 9th August 1999, wherein the learned trial Judge refused the appellant’s application to amend its statement of defence in line with paragraphs 6 and 7 of the 4th amended statement of defence (a copy or the 4th amended statement of defence is on page 67 of the records.)

The plaintiffs claim against the defendant is for the sum of (US$ 2,170,951.41) two million, one hundred and seventy thousand, nine hundred and fifty one dollars and forty one cents and (N=4,806,055.64) four million, eight hundred and six thousand, fifty five naira and sixty four kobo as special and general damages for breach of insurance contract of indemnity in respect of the plaintiff’s self elevating work boats “MV RUTH” and “‘MV STELLA.”

The plaintiff also claims interest in the sum of (US$451,451.41) four hundred and fifty one thousand, four hundred and fifty one dollars, forty one cents and on the sum of (N=3,S06,055.644) Three million, eight hundred and six thousand, fifty five naira and sixty four kobo.

Pleadings were filed including the statement of claim (page 2 of the record of appeal), the 3rd amended statement of defence (page 26 of the record), the plaintiff’s reply to the 3rd amended statement of defence (page 32 of the record of appeal)

The plaintiff opened its case on 26th November 1997 mid-way into the trial, the defendant filed its 3rd amended statement of defence with leave of court. The plaintiff closed its case on 10th March 1999.

The defendant, then opened its defence on 16th June 1999 after the conclusion of evidence of the 1st defence witness (DW1) on 6th of July 1999, the defendant brought an application dated 19th July 1999 to further amend its statement of defence.

See also  Ahmed Mohammed Sani Abubakar V. Idris Sanni Buko & Ors. (2003) LLJR-CA

The lower court heard arguments from both sides in respect of that application on 22nd July 1999. In a considered ruling delivered on the 9th August 1999, the learned trial Judge allowed an amendment in terms of paragraph 4 of the 4th amended statement of defence and refused to allow the amendment sought in paragraphs 5, 6 and 7 thereof.

On 24th November 1999; the appellant filed a notice of appeal against the ruling delivered on 9th August 1999, wherein he raised four grounds which are reproduced hereunder omitting the particulars thereof:

  1. “The learned trial Judge erred in law in refusing to amend paragraphs 6 and 7 of the 4th amended statement of defence on the ground that it introduced new facts.
  2. The learned trial Judge erred in law in refusing leave to amend paragraphs 6 and 7 of the 4th amended statement of defence on the grounds that it was intended to overreach.
  3. The learned trial Judge erred in law in refusing to allow the amendment sought for in paragraph 7 of the proposed 4th amendment state of defence having granted leave in respect of paragraph 4.
  4. The learned trial Judge erred in law in refusing to allow the amendment sought for in paragraph 6 of the proposed 4th amended statement of defence having granted leave in respect of paragraph 4.

The appellant’s brief which was filed out of time on 14th May, 2002 about three months after the record of appeal was entered by an order directing departure from the rules of the court on 25th February, 2002, was regularized by an order granting extension of time granted on the 27th May, 2002 and same was deemed as properly filed and served on that day. The respondent however, was not as vigilant as the appellant. The respondent’s brief was purportedly filed on 27th September, 2002 that was four months after deeming the appellant’s brief as duly filed and served. However, the respondent did not apply for and obtained any order extending the time for filing of it’s brief. By order 6 rule 4(1) of the Court of Appeal Rules 2002, (then inforce) the respondent had forty five days to file it’s brief. Regrettably the two motions for extension of time filed by the respondent on 27th September 2002 and 20th June 2003 were both struck out on 26th May 2003 and 27th March 2007 respectively, the last of which was struck out following its withdrawal by the respondent’s counsel. The last motion filed by the respondent on 30th May 2007 seeking to arrest the judgment of this court was dismissed on 7th June 2007 for lacking in merit. With these developments the respondent was left with no competent brief to be countenanced. The appeal was accordingly heard on the appellant’s brief.

See also  Attorney-general Of The Federation V. Manufacturers Association Of Nigeria & Ors. (2007) LLJR-CA

The appellant raised a single issue for determination in this appeal from the four similar grounds of appeal as follows:

“Whether the learned trial Judge was right in refusing to grant an amendment of paragraphs 6 and 7 of the 4th amended statement of defence.”

The fourth amended statement of defence exhibited to the application seeking leave to amend the statement of defence dated 19th July, 1999 contains inter alia, the following averments:

  1. “In response to paragraph 5 of the statement of claim, the defendant avers that the plaintiff operated a group account wherein paid premiums were paid in into the account periodically and not specifically for each of the policy in respect of the various insurance contracts entered into by he plaintiff company.
  2. In response to paragraphs 4-8 of the plaintiffs statement of claim, the defendant avers that it was understood by the plaintiff and defendant that any contracts of insurance entered into between the plaintiff and defendant in respect of any of the plaintiff’s equipment would only take effect from the date of payment by the plaintiff of the relevant premium under and in respect of each such insurance contract to the defendant. The defendant will at the trial of this action rely on a letter dated 1st March 1993 written to the plaintiff through its agents in proof of this averment and the plaintiff is hereby given notice to produce the original.
  3. “In response to paragraph 7 and 8 of the statement of claim the defendant avers that the premiums payable on the policy of the MN “STELLA” and the MIV “RUTI-r” were communicated to the plaintiff by two separate debit notes both dated 1st September, 1992 and numbered 6190 and 6191 respectively. The plaintiff will at the trial of this action rely on the counterpart copies of the said debit notes in proof of this averment.”
  4. In further response to paragraphs 7 and 8 of the statement of claim, the defendant avers that although Policy Certificate were issued in favour of the plaintiff, the premiums payable on those policies were not paid at the time of issuance, and was in fact not paid in respect of the MIV “RUTH” before the accident forming the subject of this action occurred on the vessel on 7th July, 1993. The defendants will rely on the audited statement of the group account of the various insurance policies held by the plaintiff with the defendant company at the trial of this action in proof of this averment. (See page 67-68 of the record of appeal).”
See also  Christopher Onjewu V. Kogi State Ministry of Commerce & Industry & Ors. (2002) LLJR-CA

The learned trial Judge allowed the amendment in respect of paragraph 4 and refused to grant leave in respect of paragraphs 5, 6 and 7. The appeal is against the refusal to grant leave to amend the statement of defence in line with paragraphs 6 and 7. The learned trial Judge in his ruling observed thus:

Membership Required

You must be a member to access this content.

View Membership Levels

Already a member? Log in here

Leave a Reply

Your email address will not be published. Required fields are marked *