British American Insurance Company Nigeria Limited V. Matthew Ekeoma & Anor (1994)

LawGlobal-Hub Lead Judgment Report

EDOZIE, J.C.A.

This is an appeal against the judgment of Ojiako J, as he then was., The judgment was delivered on 24/11/87 at the Owerri High Court in Suit No. HOW/243/85.

The respondents were the plaintiffs in the court below while the appellant, an insurance company was the defendant. The 1st and 2nd respondent were, respectively the son and widow of one John Ekenma Ekeoma, hereinafter called the deceased or the insured. In 1983, the deceased took out a life insurance policy with the appellant company for the sum of N1,500.00 with the respondents as the beneficiaries. Following the death of the deceased, the respondents, commenced the action leading to this appeal. In their six paragraphed statement of claim they alleged in paragraph 5 thereof that the deceased died accidentally on 23/11/84 and pleaded a Medical Report dated 24/11/84. By reason of the accidental death of the deceased, they claimed to be entitled under the life policy to the sum of N6,500.00 particularised in paragraph 6 of the statement of claim as follows:-

“6. The plaintiffs’ claim against the defendant is as follows:-

(a) Accidental claims under first Degree N1,500 x 2 -N3,000.00

(c) Accidental Death dis-membership (sic) N2,000.00

Accident injury policies N1,500.00

Total N6,500.00

The appellant, in its 11 paragraphed statement of defence admitted that the deceased had a life policy with it in favour of the respondents. In paragraph 3 of the statement of defence, the appellant company denied that the death of the insured was accidental within the purview of the terms of the policy. It alleged that the death of the deceased was non accidental and that the respondents were entitled only to the sum of N1,500.00 and furthermore that the respondents were offered this amount which they refused to accept.

At the trial, the respondents called an expert witness, a medical doctor. Dr. V.C. Onuoha (P.W.1) to establish that the death of the deceased was accidental. The appellant also called one expert witness, a medical doctor viz Dr. R.C. Okoli (D.W.1) to prove that the death of the deceased was non-accidental. The appellant’s staff manager, Mr. Hyginus Ohaji (D.W.2) tendered the deceased’s life policy which was admitted as Exh B. He sought to tender a letter allegedly written by the 1st respondent to the appellant to report the death of the deceased. The letter was rejected following an objection by the respondent’s counsel on the ground that the 1st respondent did not sign the said letter. The D.W.2 further testified that the respondent’s entitlement if the deceased died a natural death was N1,500 and that since the policy was taken on 1st December, 1983 and was under one year before his death, the beneficiaries are only entitled to N1,500.00 even on accidental death of the deceased.

On the agreement of both counsel for the parties, one Innocent Onwuegbuchulam presumably an insurance expert was called to testify on the entitlement of the respondents under the policy Exh B. He confirmed that the amount payable under the policy for natural death was N1,500.00 and N6,500.00 in the case of accidental death.

At the conclusion of the trial, the learned trial Judge entered judgment for the respondents in term of their claims.

Dissatisfied with the judgment the appellant has appealed against it. There are six grounds of appeal subjoined to the notice of appeal.

The six grounds without their particulars read as follows:-

“(1) Error in Law

The learned trial Judge erred in law when he failed to consider and construe the conditions set out in the Insurance Policy subject matter of the suit in the court below when the policy was clearly an issue in the pleadings at the trial.

(2) Error in Law

The learned trial Judge erred in law when he held that the death of the deceased assured was accidental in terms of the Insurance Policy relying on the controverted evidence of a witness who never in any way claimed to know or appreciate the general custom and practice of insurers especially as to the language and usage of insurers relevant to the suit.

(3) The learned trial Judge erred in law when he held the defendant/appellant liable in the court below when the pleadings of the plaintiff at the trial was (sic) patently and fatally devoid of material averments as to the liability of the company under the policy in support of their claim at the trial.

(4) The learned trial Judge erred in law when he admitted evidence at the trial for the plaintiff’s as to the liability of the defendant/appellant when there were no facts pleaded to which such evidence went at the trial.

(5) Error in Law (sic)

The judgment is altogether unreasonable, unwarranted and cannot be supported having regard to the evidence at the trial.

(6) Error in Law

The learned trial Judge erred in law by failing to admit that letter written to the appellant company in evidence on the ground that the 1st plaintiff said it is not his writing.”

The appellant, by its counsel filed a brief wherein the following five issues were formulated for determination:-

“1 Whether or not the trial Judge acted rightly when he failed to interpret Exh “B” at the trial before coming to the conclusion of the case.

2. Whether the terms of the Insurance Policy, Exh “B” ought to be interpreted to include Cadio Vascular Accident which P.W.1 interpreted to mean trauma leading to bleeding inside the skull and if not, ought oral evidence be admitted at the trial to vary the terms of Exh “B”.
3. Whether the learned trial Judge properly weighed the evidence at the trial.
4. Whether the learned trial Judge was right in rejecting the letter merely on 1st plaintiff’s denial (not on oath) of its authorship.
5. Whether the statement of claim, even if admitted in its entirety disclosed a prima facie case on which evidence was received in favour of the plaintiffs/respondents given the terms of Exh B.”

On their own part, the respondent through their counsel, filed a respondents’ brief of argument in which the issues formulated read as follows:-

“(a) Whether the plaintiffs/respondents proved their case and were entitled to judgment.

(b) Whether the learned Judge misdirected himself in any way as to the standard of proof.

(c) Whether the learned trial Judge correctly directed himself as to the onus of proof having regard to the pleadings and evidence before the court.

(d) Whether the learned Judge made a correct approach to (sic) tendered by both sides to the case.”

Dealing with the 1st and 2nd issues together, counsel to the appellant, in his brief of argument, referred to the insurance policy Exh B on the meaning of accidental death. He submitted that there were no facts pleaded nor evidence led to show that the deceased died accidentally in terms of the insurance policy Exh B. It was contended that the Medical Report Exh A issued by P.W.1 stating that the deceased died of Cardio Vascular Accident (CV A) did not establish that the deceased died accidentally in terms of the insurance policy Exh B because there was no evidence of any contusion or wound on the body of the deceased nor was any autopsy carried out. Counsel finally submitted on this issue that the learned trial Judge, by relying on the evidence of P.W.1 in holding that death was accidental had abdicated his responsibility of interpreting Exh B and of evaluating other evidence before him; the case of A.-G., Oyo State v. Fairlakes Hotels Ltd (No.2) (1989) 5 NWLR (Pt. 121) p.285 was referred to. In his response, learned counsel to the respondents submitted in his brief that the learned trial Judge was justified in preferring the evidence of the respondent’s expert witness (P.W.1) who had the opportunity of seeing, examining and treating the insured before death as against the appellants’ expert witness (D.W.1) who admitted not seeing the insured before or after death.

In regard to the 3rd issue in the appellant’s brief, it was submitted firstly, that the evidence of P.W.1 that the deceased fell was hearsay and inadmissible on the authority of the case of Subremanian v. Public Prosecutor (1956) 1 WLR 965 and secondly that the evidence of P.W.1 on the cause of death of the deceased was conflicting and if properly evaluated, could not have been believed. Counsel referred to the evidence of the appellant’s expert’ witness (D. W.1) which is in conflict with that of P.W.1 and submitted that the trial Judge should not have rejected the evidence of D.W.1 merely because he the D.W.1 did not see the deceased before or after death. It was contended that the trial Judge should have called a third expert witness and decide on the preponderance of the evidence of all the expert witnesses. In reply to the foregoing submissions, learned counsel to the respondents argued that the only witness who is competent to give opinion to the court on the cause of death was the doctor who saw a patient, examined and treated him.

The fourth issue in the appellant’s brief complained of the wrongful rejection of the letter said to have been written by the 1st respondent to the appellant on the ground that the 1st respondent stated that the letter was not his writing. It was contended that a document, if relevant and pleaded ought to be received in evidence and that the question of its authorship is only relevant in assessing the weight to be accorded to the document; the case of Odogwu v. Odogwu (1990) 4 NWLR (Pt.143) p.224 at 233 was cited.

It was submitted that since the letter in question was rejected, the court ought to have held that the notification of the death of the deceased to the appellant which is a condition precedent to liability had not been fulfilled in which case the case should have been dismissed. Responding, the respondent’s counsel argued that the appellant did not prove that it was the I st respondent who wrote the letter and that issue was not joined on the pleadings as to whether the appellant was notified about the death of the deceased. He referred to the evidence of D.W.2 offering to the respondents a cheque for N1,500.00 and argued that was conclusive that the appellant had notification about the death of the deceased.

Under the fifth issue, learned counsel to the appellant, apparently alluding to the wordings of the insurance policy Exh, B stated that it was not alleged in the statement of claim that the death of the deceased was as a result of bodily injuries effected solely through violent and accidental means and or that there was a visible contusion or wound on the exterior of the body nor was it pleaded that any autopsy was carried out on the body of the deceased. It was further contended that the heads of claim in paragraph 6 of the statement of claim did not satisfy the rules of pleading as they did not disclose facts on which they were based. To these, the respondents’ counsel referred to paragraph 6 of the statement of claim which specifically averred that the deceased died accidentally.

The grounds of appeal, the issues distilled there-from and the arguments of counsel in their briefs all revolve largely on the proper construction of the insurance policy Exh. B. In paragraph 5(a) of the statement of defence the appellant quoted the provisions contained in the last page of Exh. B. part of the provisions relevant to the matter under consideration reads as follows:-

PAYMENTS FOR ACCIDENTAL DEATH OR INJURY AS FOLLOWS

“If any of the following events occur after the insured has attained age five and prior to attaining age sixty five while this policy is in full force and effect and has not been exchanged for Extended Term, Insurance, the company will pay the amounts set out below in addition to the amount of insurance.

(1) On the death of the insured as a direct result of bodily injuries effected solely through external violent and accidental means of which (except in the case of drowning or of internal injuries revealed by autopsy) there is as evidence a visible contusion or wound on the exterior of the body and that death occured within ninety days of such accident an amount equal to the amount of insurance.

(2)……………….

(3)……………….

provided that the total amount payable under this section shall not in any circumstances exceed the amount of insurance”

As is evident from the above provision, two questions arise for consideration. The first is the nature of the accidental death for which benefits are payable and the second is the amount of benefits payable. I will dispose of the latter first. The above term of the policy does not appear to be the basis of calculation under which the respondents claimed the total sum of N6,500.00 under paragraph 6 of the statement of claim. It would appear that their claim as set out in paragraph 6 of their statement of claim was based on entirely different provisions. But the appellant in its statement of defence did not specifically challenge or dispute the basis of claim. Presumably, it was proper for it not to have done so for according to the rules of pleadings, damages are always in issue and so failure to deny them is not fatal: Re The Nigerian Produce Marketing Board v. Adewunmi (1972) 11 S.C. 111. At the trial, the appellant’s witness (D.W.2) giving evidence in chief testified inter alia, as follows:-

“My name is Hyginus Nnanne Ohaji. I am a staff manager to the defendant company’s .The insured did not die of accident and so plaintiffs are not entitled to N6,500.00. The company made out a cheque for N1,500.00 which the plaintiff’s refused. Cheque. tendered as Exh C.”

It is pertinent to observe that the witness did not say that if death had been accidental, the respondents would not have been entitled to N6,500.00. However, answering questions under cross-examination which took place two weeks after the examination-in-chief he said-

“By the terms of the Insurance, the beneficiaries would be entitled to the sum of N1,500.00 on natural death of the insured. By the terms, the beneficiaries would be entitled on accidental death to N1,500.00 as the insured has not contributed up to one year. The policy was issued on 1st December, 1983 and he died on 22nd November, 1984.”

The witness did not make reference to any particular provision of the policy on which he based his calculation. His evidence is however at variance with that of an independent witness, Innocent Onwuegbuchulam who was called by the court to testify with the consent of both parties and who testified, in part, as follows:-

“I am a beer distributor. I was formerly for six years an agent to British American Insurance Company, district 599, that is, covering parts of Bendel, Ondo and Anambra states …. I have seen and read the life assurance in question in this suit. From the policy, on the death of the insured, Mr John E. Ekeoma, the plaintiffs who are the beneficiaries are entitled on the natural death of the insured to N1,500.00 only. On death by accident the company will pay to the beneficiaries double N1,500.00, that is. N3,000.00. As the policy is under one year, the insurance company will pay in addition the amount stated her (sic) schedule, that is, N2,000.00. On the A.J.P. (Accident Indemnity Policy) the company will pay in addition the weekly premium of N15 x 100, that is,N1,5000. The total payment therefore due to the beneficiaries is N6,500.00 as stated in the policy. This is what applies.”

It is obvious from the evidence of this witness that he was not relying on paragraph I of the policy set out earlier. Reference was made to schedule which mayor may not be part of Exh B. In accepting the evidence of the independent witness, that is Innocent Onwuegbuchulam, the learned trial Judge said:-

“The plaintiffs in paragraph 6 of their statement of claim claimed from the defendant the sum of N6,500.00 resulting from accidental death of the insured John Ekeoma Ekeoma. The defendant denied

liability to the amount claimed on the ground that the insured died a natural death not by accident and tendered this sum of N1,500.00. This means that the defendant did not dispute the said amount of N6,500.00 if it was proved that the insured died accidentally. However, to make assurance double (sic) sure the court with the consent of the two opposing counsel called an independent witness, Innocent Onwuegbuchulam. The person had been an agent of the defendant’s company for six years and from his testimony the life assurance policy of the defendant company is the same all over the country. His evidence which is very clear and which I believe is that what the beneficiaries are entitled to if the insured died accidentally was a total of N6,500.00.”

The learned trial Judge, based on the evidence of the independent witness, found that the amount due and payable to the beneficiaries on the accidental death of the deceased was N6,500.00. There is no appeal against this finding. It is settled law that the weight to be attached to a document is a matter of inference to be drawn from established facts and has nothing to do with the credibility of witnesses and in this regard both the trial court and the appellant courts are in the same position when the question involved is the proper weight to be attached to that document: A.-G. Oyo State v. Fairlakes Hotels Ltd (supra); Akinola v. Oluwa (1962) 1 All NLR 224 (1962) 1 SCNLR 352. Since there has been no appeal against the finding of the trial Judge that the amount payable on accidental death is N6,500.00, it is unnecessary for me to embark on a reappraised of the whole of the insurance policy Exh B to see if the finding is in accord with the terms of the policy.

I will now advert my mind to the meaning of accidental death in the context of the policy Exh B. As this is the bone of contention in this case, I would at the risk of repetition reproduce hereunder paragraph I of the terms of the policy on Payment for Accidental Death:

“On the death of the insured as a direct result of bodily injuries effected solely through external violent and accidental means of which (except in the case of drowning or of internal injuries revealed by autopsy) there is as evidence a visible contusion or wound on the exterior of the body and that death occurred within ninety days of such accident… ……………….”

Under the above provisions, accidental death must be one caused by external violent and accidental means giving rise to (a) bodily injuries evidenced by contusion or wound on the exterior of the body, or (b) internal injuries revealed by autopsy.

The contention of learned counsel to the appellant is that the statement of claim was devoid of facts such as that the deceased had contusion or wound on the body or that a autopsy was carried out on the body of the insured, and that in the absence of averments in the pleadings in respect of such facts, evidence could not be admitted to prove that the deceased died accidentally.

With due deference to counsel, there is no force in that contention. In paragraph 5 of the statement of claim the respondents pleaded inter alia. thus –

The late John Ekenwa Ekeoma died accidentally on 23rd of November, 1984.” (Italics supplied)

According to Lord Denman C.J., In the case of Williams v. Williams (1838) A & E 314, 331 –

“It is an elementary rule in pleading that, when a state of facts is relied on, it is enough to allege it simply without setting out the subordinate facts which are the means of proving it or the evidence sustaining the allegation.”

It is my view that the respondents having averred in paragraph 5 of their statement of claim that death was accidental, it was not necessary for them to plead subordinate facts alleging that there were contusi0ns or wounds on the body of the deceased or that autopsy on his body was carried out.

In regard to the evidence as to whether the insured died accidentally or not two registered medical practitioners testified, one (P.W.1) for the respondents and the other, (D.W.1) for the appellant. P.W.1 gave evidence to the following effect:”

“My name is Vital is Chukwuemeka Onuoha. I am a registered medical practitioner resident at Eziudu Mbaise. Iknow the plaintiffs. I know one John Ekeoma. I treated him last before he died. He was rushed to my clinic. Modem Clinic and Maternity as an emergency case. He was in an unconscious state. The history from his relations was that he was healthy before he had a fall from a standing state which gave a high impact to the brain. He became unconscious. I examined him. The blood pressure was continuously low and continued to fall till his death despite all the treatment given-to him. I diagnosed an intra crania bleeding inside the skull. All efforts to stop the bleeding proved abortive. He eventually died and we certified him dead. He was rushed to my clinic on 22/11/86. He died after about 4 hours. In my opinion the remote cause of death was tvauma leading (0 bleeding inside the brain. In my opinion the fall created a high impact between the hard object and the hard skull. This led to continuous bleeding inside the brain which led to heart failure, the immediate cause of death.”

XXD by defence counsel

“Before 22/11/84 I had not treated the deceased. I gave a medical report (in) which I said that the deceased was admitted and treated as a case of Cardio Vascular Accident. Report tendered as Exh A. The C.V.A. is not same as high blood pressure. By Cardio Vascular Accident (C. V.A.) I meant that there was a vascular accident which eventually led to heart failure. I cannot say whether the deceased was hit with a hard object which led to the fall. The patient with cardiac illness can get a shock, fall down and hit their head against hard objects. High blood pressure cannot cause cardio vascular accident but could cause cerebo vascular accident, i.e. stroke. It is not true that the deceased died of high-blood pressure.”

The appellant’s witness D.W.1 testified to the following effect

“My name is Rowland Chukwudi Okoli. I am a registered medical practitioner as well as a consultant physician and a cardiologist. I work at the Chapel Hospital 148 Tetlow Str Owerri. I know what is called Cardio Vascular Accident. It is another term for stroke and can be defined as a sudden but prolonged loss of power or paralysis usually affecting one half of the body. This usually occurs following damage to the opposite half of the brain. This damage to the brain usually results from the sudden obstruction to blood flow and commonly occurs in hypertensive patients. Somebody who is said 10 have died (sic) Cardio Vascular Accidental could have died of the complications of high blood pressure. A person who dies of Cardio Vascular Accident could not he said to have died of direct result of bodily injuries effected solely through external in (sic) violent means.”

XX D by defence counsel

“I do insurance medical exams for some of the clients of the (defendant) company. I did not examine the deceased for the defendants. I had no occasion to see him before he died. Generally I would not recommend a person who is suffering from hypertension to be covered by a life insurance. Cardio Vascular Accident is another name for stroke.”

The above are the two conflicting versions of the testimony of expert witnesses proferred to the court to prove or disprove the assertion that the insured died accidentally. The learned trial Judge rejected the evidence of the appellant’s witness (D.W.1) and accepted that of the respondent’s witness (P.W.1). In this connection, he stated as follows:-

“The real question which the defendant company contested was whether the insured died a natural death or an accidental one. Each party to the dispute called a medical doctor. The plaintiff’s doctor was the one who admitted the insured, treated him before death and stated in his evidence that the death in relation to the insurance policy was accidental. The defendant’s doctor did not see nor treat the insured. His evidence was hypothetical based on the medical report and it was his opinion that the death of the insured could not be accidental in relation to the insurance policy. As between the two doctors, I hold that the doctor who saw and treated the insured was in a better position to state the sort of death that the insured met with. If Dr. Okoli who testified for the defence had seen or treated the deceased insured, he would have been better equipped to say for certain the nature of death the deceased insured suffered.”

The above conclusion reached by the learned trial Judge is unimpeachable. It is trite law that where there is conflict in the opinions of experts, it is the duty of the court to come to a conclusion in the case by resolving such a conflict and can do so by rejecting the opinion of one or the other such experts. See John Wilberforce Bamiro v. S.C.O.A. (1941) 7 WACA 150; R v. Godo (1975), 61 Cr App R.131; Ozigbo v. Police (1976) 1 NMLR 273, Laws and Practice Relating to Evidence in Nigeria by Aguda at p.115 Article 9-05.

It was contended that the evidence of P.W.1 is conflicting and to some extent hearsay evidence. With respect, there is no conflict in the evidence of P.W.1 which gave the remote cause of death as trauma leading to bleeding inside the brain and heart failure as the immediate cause of death. Although the P.W.1 stated that he was told that the deceased fell down, his evidence on cause of death was based on his observation of the deceased. It was further contended that there was no evidence that an autopsy involving the dissection of the deceased was carried out as required under the insurance policy. The simple answer to this is that though the policy stated “internal injuries by autopsy”, it did not say that it is only by autopsy that the death resulting from internal injuries can be asserted. Besides, the P.W.1 was not cross-examined on the question as to whether or not he carried out autopsy on the body of the deceased. In the case of Oyakhire v. Obaseki (1986) 1 NWLR (Pt. 19) p.735 at 742 cited by learned counsel to the respondents, this court (Benin Division) decided that:-

“In case where the court is afforded the opportunity of an expert evidence on a matter pleaded and on which issue is joined, the expert evidence is uncontroverted either due to failure to cross-examine the experts or after cross-examining him his credibility remains untainted due to failure to elicit any evidence adverse to his expert opinion, the court must believe his evidence.”

Since the appellant’s counsel did not cross-examine the P.W.1 on whether or not he carried out an autopsy on the deceased, it is too late in the day to complain about the matter.

It was also sought to impugn the judgment of the court below on the ground that the letter allegedly written by the 1st respondent to the appellant was wrongly rejected. In that letter which was pleaded in paragraph 7 of the statement of defence. the 1st respondent was said to have notified the appellant that his father the insured had died on 22/11/84 at Modern Clinic and Maternity after a few day, illness. The appellant had sought to tender the letter apparently to establish that the death of the insured was not accidental. The document was objected to and rejected on the ground that the 1st respondent denied its authorship. In my view, if a document is relevant and has been pleaded and the only objection to it that it was not made by a party to the proceedings alleged to have made it, it ought to be admitted and at the end of the trial a decision made on its authorship and what weight if any to attach to the document. The rejection of the letter is not per se a ground for the reversal of the judgment of the court below. It is trite law that the wrongful exclusion of admissible evidence is not of itself a ground for the reversal of any decision if it appears to an appellate court that had the evidence excluded been admitted, the decision would reasonably, nevertheless have been the same: section 227(2) of the Evidence Act Cap 112, Laws of the Federation of Nigeria, 1990 Wahabi Alao Lawal v. The State (1966) 1 All NLR 107. In my view the purpose of the letter in question was merely to notify the appellant about the death of the insured and not to state the circumstances or the cause of death. It seems to me that if it had been admitted, it would have been irrelevant on the issue of the cause of death of the deceased for which expert medical evidence was available. I am therefore unable to hold that the rejection of the letter in question had occasioned a miscarriage of justice. Furthermore, since issues were not joined on the pleadings on the question of notification of the deceased to the appellant, it is preposterous to argue that the rejection of the letter meant that the condition precedent to liability had not occurred.

In view of the foregoing, and in particular being of the view that the trial Judge was right in his finding that the deceased died accidentally and that the respondents’ entitlement is N6,500.00, this appeal lacks merit and is hereby dismissed. The appellant is to pay to the respondents costs assessed at N1,500.00.

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Other Citations: (1994)LCN/0209(CA)