Jombo United Company Limited V. Leadway Assurance Company Limited (2016)

LAWGLOBAL HUB Lead Judgment Report

AMIRU SANUSI, J.S.C

At the Federal High Court Port-Harcourt Division (Trial court), the plaintiff now appellant sued the respondent as defendant at the trial court for the under listed reliefs as adumbrated in paragraph 19(5) of its statement of claim. The reliefs sought are as follows:

The plaintiff has suffered loss and damages as a result of the defendant’s breach of contract as well as the profits it would have earned from the availability of funds due to it on other business transaction.

PARTICULARS OF DAMAGES SUFFERED

1. Loss of 121 bales of Icelandic stockfish =US$S3B8O
2. Loss of 7907 bags of Assorted Icelandic fish.

Heads – US9122,048

TOTAL = US$756,02s

US$156,029 equivalent in Naira at the rate of N80 to US$1 = N72,482,240.00

Total Damages claimed = N20,000,000

(Twenty Million Naira Only) being damages against the defendants jointly and severally.

The facts of the case as could be gathered from the record are briefly summarised below. The appellant herein, entered into an agreement with the respondent on 7th of March 1997 for the insurance of 121 bales of Icelandic stockfish valued at 33,880US$ dollars and 1907 bags of assorted Iceland fish valued at 122,048.00US dollars for duration of the voyage which commenced in Iceland to Port Harcourt. The contract agreement was backed or supported by two insurance policies which were marked as Exhibits A and B. Prior to the execution of the contract agreement, the appellant presented relevant shipping documents to the respondent at the latter€™s request vide his letters marked Exhibit C, D and D1 which were the invoices, as well as Exhibits D2 and D3 which were the bills of lading, all these documents were submitted to the respondent under a covering letter dated 8th April 1997 which was also exhibited at the trial and marked Exhibit D4.

The appellant, has pursuant to the contract agreement, claimed that he paid the premium as agreed upon and sequel to that, the respondent issued the appellant with “Insurance Policies” also exhibited at the trial and marked as Exhibits A and B. Part of the Insurance Policies i.e. Exhibits A and B read as bellow:-

“We the Assurances Leadway Assurance Company Limited, hereby agree in consideration of the payment of a premium, to be agreed, to insure against loss, damages liability or expenses in the manner hereinafter provided”

On the 18th March 1997, the appellant received fax message from the shippers that the ship carrying the consignment got lost in the sea. The fax message was tendered in evidence at the trial, admitted and marked as Exhibit F1 and the appellant immediately communicated this development to the respondent through a letter. Thereafter, the respondent wrote exhibit C requesting for shipping documents i.e. exhibits D, D1, D2 and D3. He subsequently made a claim of 156,088US dollars being the value of the insured goods. The respondent thereupon declined liability on the ground that the subject matter of the insurance had already been destroyed as at the date of insurance through Exhibit F2. It therefore refused to honour its obligation under the agreement despite repeated demands. As a last resort, appellant instituted an action against the respondent.

Before the commencement of hearing in the suit, the respondent filed a motion on notice seeking the dismissal of the suit/action on the following grounds:-