Edokpolor And Co. Ltd. Vs Bendel Insurance Co. Ltd (1997)

KUTIGI, JSC.  

In the Federal High Court holden at Benin-City, the plaintiff’s claims against the defendant as contained in para.22 of the Statement of Claim read thus –

“(i) The sum of N660,255.95 being the sum for which the goods were actually insured.

(ii) Interest at the rate of 10% until date of judgment having regard to the terms of the Policy No. MAR.4940/8/79 for which Certificate No.1162 was issued to plaintiff.

(iii) Compound interest at the rate of 10% until date of judgment having regard to the Bank interest being paid by the plaintiff.”

After the filing and exchange of pleadings the case proceeded to trial. At the trial the plaintiff called four witnesses in support of his claims and tendered a number of documentary exhibits including a copy of the Marine Insurance Policy No.4940/8/79 issued by the defendant to the plaintiff (Exhibit N), the Certificate of Insurance No. 1162 (Exhibit C) and Bill of Lading (Exhibit A). The defendant called no witness. It rested its case on that of the plaintiff. Counsel on both sides addressed the court. In a reserved judgment the learned trial judge concluded on page 104 of the record as follows –

“In conclusion I am not satisfied and hereby disallow all claims for interest until date of judgment, but hereby give judgment for the plaintiff against the defendant in the sum of N660,255.95 being the sum for which the goods were insured and with costs assessed at N2,000.00.”

Dissatisfied with the judgment of the trial court, the defendant appealed to the Court of Appeal. Two issues were submitted for determination thus –

(a) Whether the teamed trial judge was right in awarding the sum of N660,255.95 (Six hundred and sixty thousand, two hundred and fifty-five naira, ninety-five kobo) to the respondent (at page 104 lines 27 -30) having regard to the evidence adduced before the trial court by the respondent.

(b) Whether the learned trial judge was right in deciding the issues raised by the parties without reference to the marine policy governing the contract between the parties.

In a well considered judgment, the Court of Appeal allowed the appeal of the defendant and set aside the judgment and orders of the trial court with costs of N1,500.00 against the plaintiff.

Aggrieved by the decision of the Court of Appeal, the plaintiff (hereinafter referred to as the appellant) has appealed to this court. The defendant will also from henceforth be referred to as the respondent. In compliance with the Rules of Court, the parties filed and exchanged their briefs of argument. These were adopted at the hearing when oral submissions were also received in amplification thereof.

In the appellant’s brief, three issues, are set out on page 2 as arising for determination in this case. They are –

“1. Who has the burden of proof of alteration of port of departure under section 44 of the Marine Insurance Act, 1961? Is it the insured or the insurer?

2. Whether the respondent could rely on the defence of alteration of port of departure and invoke Section 44 of the Marine Insurance Act, 1961 to defeat the appellant’s claim when that fact was not specifically pleaded by the respondent.
3. Whether the Court of Appeal was right in holding that the risk insured against did not attach because the vessel sailed from Seville rather than Hamburg to Koko/Sapele as stipulated by the Insurance Policy when there was no finding of fact by the trial court to that effect.”

Before delving into these issues, it is I think proper at this stage to examine the facts and the salient points in the pleadings of the parties. Once, the facts are clear, it ought not be difficult to apply the law. ,