Mattar V Norwich Union Frie Insurance Society Ltd & Anor. (1965)

LawGlobal-Hub Lead Judgment Report

ONYEAMA, J.S.C. 

The appellant took out a policy of insurance No. 77135823 of the 18th of May, 1960, with the respondents against loss by ‘theft following upon an actual forcible and violent entry or damage by thieves following such entry’ in respect of goods and other property in a shop at 73 Broad Street, Lagos for a sum of £4,000.

The policy is in printed form but to it was attached a sheet of paper called “Documentary Evidence Warranty attached to Policy 77135823” As the case at the trial and the arguments on this appeal turned on the condition in this paper we set them out in full: It is warranted during the currency of this Policy:-

(a). That In the event of a claim for loss arising under this policy, it is warranted by the Assured that he/they will produce Documentary Evidence in English of the amount of value of the stocks held immediately prior to the happening of the loss.

(b). That the Assured keeps and during the whole of the currency of the policy shall keep a complete set of Books, Accounts and Stock Sheets or Stock Books showing a true and accurate record of all business transactions, and stock in hand, and that such Books, Accounts and Stock Sheets or Stock Books shall be locked in a fire-proof safe or removed to another building at night, and at all times when the premises are not actually open for business.

(c). That this Warranty applies separately to each and every business or branch business.

(d). That transfers of goods from one premises to another shall be a business transaction within the meaning of this Warranty.

(e). That it is further Warranted that the said safe shall not contain explosive or other hazardous commodities”.

Clause 9 of the policy incorporated these conditions into the policy.

The facts found at the trial in the High Court are that on the 8th and on the 15th of August, 1960, while the policy of insurance was still in force thieves broke into the appellant’s shop at 73 Broad Street, Lagos and stole a quantity of the goods covered by the insurance.

The appellant alleged in his Statement of Claim (and the respondents denied) that:

“The value or costs of articles or goods stolen on the 8th August, 1960, is £1,401.7s.9d and the value or cost of articles or goods stolen on the 15th August, 1960 is £2,201.13s.2d (total £3,602.0s.11d).” The respondents in their Statement of Defence stated, inter alia:

“8. The Defendants will contend during the trial that the basis of the Plaintiff’s assurance was that he shall keep and post promptly Stocks and Sales books relating to his goods. The said Plaintiff failed to keep such books at all times material to this claim and upon these premises the Defendants will contend that the Plaintiff is not entitled as per his Writ of Summons.”

The learned trial Judge decided that the appellant had failed to observe the conditions attached to the policy, which have been set out, and dismissed the claim. He also decided that although the respondents refused to go to arbitration when called upon by the appellant and as provided by clause 13 of the insurance policy, the appellant’s right to bring the present action was barred since an award by an arbitrator was a condition precedent to the bringing of an action under the policy.