Unitrust Insurance Co. Ltd. V. Ambico Sendirian Nigeria Ltd. (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

RITA NOSAKHARE PEMU, J.C.A. (Delivering the leading judgment)

The claim, the subject matter of the present appeal was instituted at the High Court of Lagos state, Lagos, by writ of summons dated the 24th of November 2005 but sealed on the 24th of October 2004, wherein the Claimant (now Appellant) claims against the Defendant (Now Respondent) as follows:

1. “The sum of N7,357,585.15 (Seven Million, three hundred and fifty seven thousand, five hundred and eighty-five naira, fifteen kobo only) due and payable by the Defendant.

2. Interest on the said sum at the rate of 21% per annum from the 13th day of April, 2005, until the Judgment and at the rate of 6% per annum thereafter until the judgment debt is satisfied.

3. The sum of N100,000.00 (One Hundred Thousand naira only) being the costs of this action.” Pages 1-2 of the Record of Appeal.

In his 7 paragraphs Statement of Claim reflected at Pages 3-4 of the Record of Appeal, the claimant had claimed reliefs 1 & 2 only, as reflected as reliefs a & b on the Statement of Claim.

The Appeal is for an order to set aside the Ruling of the Hon. Justice R.I.B. Adebiyi given on the 26th of June 2006 in suit No. LD/2117/2005.

The Appellant’s Brief of argument is devoid of the facts of the case, but on the 18th of September, 2012, when he adopted his brief of Argument, learned counsel submitted that the Appellant had paid part of the premium and not the full payment. That there was a Preliminary Objection on failure to pay the full premium, but that the court held that the contract of Insurance was voidable and declined Jurisdiction.

It is however on record that, at the conclusion of filing of pleadings, the Respondent, filed a Notice of Preliminary Objection dated 18th May 2006 challenging the enforceability and/or validity of the contract of Insurance, as well as the competence of the lower court to hear and determine the substantive suit. Pages 96-103 of the Record of Appeal.

The Grounds for the Preliminary Objection were that:

a) The Contract of Insurance, the subject matter of the present suit is incompetent and an abuse of the processes of this Honourable Court.

b) This Honourable Court lacks the requisite jurisdiction to entertain the suit as presently constituted.

This is buttressed by the grounds that:

1) “By virtue of Section 50 of the Insurance Act, receipt of an insurance premium is a condition precedent to a valid contract /Insurance unless the premium is paid in advance.