British India General Insurance Co (Nig) Ltd V. A. Thawardas (1978)

LawGlobal-Hub Lead Judgment Report

OBASEKI, JSC. 

The appellant herein was defendant in the court below, the High Court of Lagos State holden at Lagos against whom the respondent as plaintiff instituted these proceedings claiming by his writ of summons and the statement of claim “(1) The sum of £1225.=.=. (One Thousand Two Hundred and Twenty Five Pounds) being the insured value of the 165 cases of cartons of sardines insured with them; (2) 5% interest on the said sum from the date of judgment until the whole judgment debt and costs have been liquidated.”

Pleadings were, on the orders of the court below, filed and served and at the close of pleadings, the issues raised were tried. At the close of the trial, the learned trial Judge (Agoro, J.) allowed the claim in a considered judgment, the concluding portion of which reads:   “I am satisfied upon the evidence before the court that the consignment of 165 cases of sardines insured for £1,225 under the Certificate of Insurance (Exhibit D) issued by the Defendant’s company have not been delivered to the insured, and non-delivery of the goods was one of the risks covered by the policy of insurance (Exhibit C) also issued by the Defendant’s company.

I have, therefore, come to the conclusion that the Defendant is liable to the Plaintiff under the Policy and Certificate of Insurance for the insured value of the 165 cases of sardines. Judgment will accordingly be entered in favour of the Plaintiff against the Defendant company in the sum of £1,225 (N2450.00) with costs which I will now assess.

Costs to the plaintiff is assessed at N200.00.”   It is against this judgment that the appellant has complained in this appeal. At the hearing, 6 new grounds were, with the leave of the court, substituted for the grounds set out in the Notice of Appeal but only three of them were argued.   The withdrawal of two of them followed the unsuccessful application to amend the Statement of Defence in this court The 3 grounds argued are as follows:   “(1) That the decision is against the weight of evidence; (2) The learned trial court misdirected itself when it held that the Plaintiff had an insurable interest to the extent of the cash value of the sardines when there was evidence before the court which shows that the insurance policy enures for the benefits of “Shamco”; (3) The learned trial court misdirected itself when it held that it was not part of the case for the defence that the Plaintiff had no insurable interest in the subject matter of the insurance in Exhibit ‘C’

Particulars of Misdirection The plaintiff himself, one Mr. A. Thawardas admitted under cross-examination that he personally was not a party to the contract of insurance in both Exhibit “C”, nor the Certificate of Insurance i.e. my name does not appear on Exhibit “C” neither does my name appear on the Certificate of Insurance.” …………….   Two main points of substance emerged from the submission of counsel. The first point was that the plaintiff/respondent was unknown to them – defendant/appellant and in any case, entered into no contract of insurance with them. The second point that emerged from the argument of counsel was that the respondent had no insurable interest in the subject matter of the insurance.   These two points ex facie appear substantial but amount in reality to flying in the face of the facts pleaded and established by evidence. We are therefore at this juncture led to a consideration of the pleadings and facts established and accepted by the learned trial Judge.

Of particular importance are paragraphs 1, 2, 3, 4, 5, 8 and 9 of the statement of claim which read: “1. The Plaitniff is a merchant and carries on his business at 43/47 Balogun Street, Lagos Nigeria under the name and style of SHAMCO 2. The defendants are an Insurance Company incorporated in Nigeria and have their registered office at No. 18, Martin Street, Lagos, Nigeria. 3. By Certificate of Insurance No. 31646 dated the 23rd day of March, 1971, issued under open cover No. LAG/68/WCO146, the plaintiff insured 165 cases of sardines shipped on the MS. BYDGESEES from Las Palmas against all risks including theft, pilferage and non-delivery.  4. The said ship arrived in Lagos port in the month of April, 1971, and the plaintiff conducted a search at the custom sheds for the said goods, but they were nowhere to be found. 5. The plaintiffs made a report to the shipping company, the Ports Authority and the defendants about his failure to trace the goods.    8. On the 27th of March, 1972, the plaintiff received a letter from the defendants (the Insurance company) reference LAG/71/2251 informing him that they were waiting for final advices from the authorities about the non-delivery of the consignment in question and assuring him that as soon as they received the advices they would not hesitate to settle his claim.

9. When on the 21st of April,1972 no further communi-cation had been received from the defendants on this issue, the plaintiff addressed a letter to them giving them seven days within which to settle his claim but the defendants failed to do so within the given time or at all hence this action.”    To these averments, the appellants pleaded in reply as follows in paragraphs 1, 2, 3, 4, 5 and 6 of the Statement of Defence. “1. The Defendant admits paragraph 2 of the statement of claim. 2. The Defendant is not in a position to admit or deny paragraphs 1, 5, 6 and 7 of the statement of claim and puts the Plaintiff to prove all the allegations therein contained.  3. The Defendant denies paragraph 9 and a paragraph numbered 10 of the statement of claim and puts the Plaintiff to the very strict proof of the allegations therein contained.  4. With reference to paragraph 3 of the statement of claim, the Defendant admits that the certificate of insurance which covers the subject matter of this action is No. 31646 dated 23rd March, 1971, but say further that the amount covered by the cerficate is £1225.0.0. (One Thousand, Two Hundred and Twenty-Five Pounds) 5. With reference to paragraph 4 of the statement of claim, the Defendant admits that the said ship arrived Lagos port in the month of April but it is not in a position to admit or deny other facts contained in the said paragraph and puts the Plaintiff to the proof of the allegation therein contained. 6. With reference to paragraph 8 of the statement of claim, the defendant admits that it wrote the letter of the 27th day of March, 1972 to the plaintiff but denies that the letter is an admission of the plaintiff’s claim by the defendant. As a matter of fact the defendant received advices to the extent that this is a case of short landing as evidenced by the Nigerian Ports Authority outrun report dated 25th July, 1971. This would be founded upon during trial of this action.”    Two witnesses Arjan Thawardas (the plaintiff) and Hilary Malacy (a traffic officer in the Nigerian Ports Authority) testified at the instance of the plaintiff and two witnesses Rah Gopal Gubtaz (Manager of defendant/appellant Company) and Ajibade Joda (an insurance)

As indicated earlier at the commencement of the hearing of this appeal, the appellant’s application to amend paragraph 7 of his Statement of Defence to enable him plead that “in any event the insurance policy had expired at the time of arrival of the ship, the insurance being only for 12 months duration.” was unsuccessful. The refusal of this amendment left the appellant practically no chance of success in this appeal in view of the state of the pleadings and the findings of the learned trial Judge.   It is part of the processes of the due administration of justice to ensure that parties in the superior courts set out their cases as clearly as possible in their pleadings so as to avoid any element of surprise. Where by the Rules of Court or by an Order of Court this has been done, it is not open to any party to go beyond the limits of his pleadings. As has often times been stated in this court, parties are bound by their pleadings and must be held to their pleadings and any evidence outside their pleadings goes to no issue and must be disregarded. See National Investment and Property Co. Ltd. v. Thompson Organisation Ltd. & 2 Ors (1969) 1 All NLR 138 at 142; Aniemeka Emegokwe v. James Okadigbo (1973) 4 S.C. 113 at 117. Emphasising this point, Lewis, JSC., delivering the judgment of this court in the case of National Investment and Properties Co. Ltd. v. The Thompson Organisation Ltd. and 2 Ors said at page 142   “It is convenient here to deal with one other general matter. Chief Akin Olugbade frequently asked us to look at the evidence adduced and not at the pleadings as it was the evidence that mattered. Now just as the appellant is bound by his grounds of appeal, so at the earlier stage of the action both parties are bound by their pleadings and it is elementary that admissions in pleadings do not have to be proved. In so far as pleadings do not contain admissions then the matters alleged must be proved in evidence but that evidence cannot derogate from the pleadings as Chief Akin Olugbade seems to us to think it could. See Idahosa v. Oronsaye E.F.S.C. 166 at 171.

A Plaintiff must call evidence to support his pleadings and evidence which is in fact adduced which is contrary to his pleadings should never be admitted. It makes no difference, as Chief Akin Olugbade suggested that the other side did not object to the evidence or that the judge did not reject it. It is of course the duty of counsel to object to inadmissible evidence and the duty of the trial court any way to refuse to admit inadmissible evidence, but if not withstanding this evidence is still through oversight or otherwise admitted then it is the duty of the court when it comes to give judgment to treat the inadmissible evidence as if it had never been admitted.

This has long been the case but it is clearly set out in the judgment of this court in Bada v. The Chairman, LEDB. S.C. 501/65 of the 23rd of June, 1967. We cannot therefore look at or accept evidence on the record here when it runs contrary to the pleadings of the Plaintiff.” (Underlining ours)   Where a defendant admits a fact in dispute by his pleading that fact is taken as established and forms one of the agreed facts of the case – Chief Okparaoke etc. v. Obidike Egbuonu & Ors (1941) 7 WACA 53 at 55. In that case, the West African Court of Appeal considered obiter the question of admissions in pleadings delivered by the parties, and said at page 55:   “But before leaving the matter we think it desirable to point out that in our view the learned trial Judge was wrong to go into the question of whether the land now in dispute is the same as that in dispute in the Uruala Native Court in 1933 and to find that identity was not proved. The identity was one of the agreed facts in this case, it was relied upon by both parties in their pleadings and since one of the objects of pleadings is to shorten proceedings by ascertaining what facts are agreed so that evidence need not be led to prove them, the court should have accepted this agreed fact as established without proof.”   We observe, therefore, that (the defendant having by paragraph 4 of his Statement of Defence admitted paragraph 3 of the statement of claim, the insurance of the sardines for £1225), it is one of the agreed facts that the respondent insured the 165 cases of sardines for £1225 with the defendant and that the certificate of insurance was No. 31646 of 23rd March, 1971. There was therefore no issue to be tried as regards the insurance of 165 cases of sardines by the plaintiff with the defendant for £1225. Even then Exhibit D, the certificate of insurance is in evidence.   It then becomes necessary to refer to the provision of Section 23 of the Marine Insurance Act, 1961 which reads: “A contract of Marine Insurance shall be deemed to be concluded when the proposal of the assured is accepted by the insurer whether the policy is then issued or not and for the purpose of showing when the proposal was accepted, reference may be made to the slip or covering note or other customary memorandum of the contract.”

Even if there was an issue raised on the pleadings about the contract of insurance, Exhibit D the cover note is uncontradicted evidence within the Act establishing the existence of marine insurance.

The admission of paragraph 8 of the statement of claim by the defendant in paragraph 6 of the S tatement of Defence puts the question of the existence of the contract beyond  question. It also raised the unfulfilled hopes of the plaintiff that the defendant/appellant would meet its obligation under the contract. In our opinion, the uncontradicted evidence of 1st plaintiff witness, Mr. Arjan Thawardas (the plaintiff) both oral and documentary (Exhibits A, B, C, D, E, F, G and H)) completely established the case for the plaintiff and we held that the learned trial Judge was fully justified to have found and said as he did –  

“I am satisfied upon the evidence before the court that the consignment of 165 cases of sardines insured for £1225 under the Certificate of Insurance (Exhibit D) issued by the Defendant company have not been delivered to the insured and non delivery of the goods was one of the risks covered by the policy of insurance Exhibit C also issued by the Defendant company.”

Having admitted that the plaintiff insured the sardines with the defendant for £1225, we fail to see any substance in the argument of counsel that the plaintiff was unknown to the defendant and that he had no insurable interest in the subject matter of the insurance. Further, there is uncontradicted evidence that the plaintiff trades under the name and style of SHAMCO and that he declared the consignment, the subject matter of the suit for insurance, and that the defendant issued him Exhibit D (he called a particular policy)   The evidence in part reads: “I am a merchant trading under the name of Shamco. The business name was registered in Lagos.

I have lost the original certificate while I was moving but I have a photocopy. This is the copy – admitted as Exhibit A. This is also a certified true copy of the application form now admitted as Exhibit B. I know the defendant as an Insurance Company. I have been dealing with them since 1968. ……………………………….. In this particular matter subject of this suit, I declared the consignment and they issued to me a particular insurance policy. This is the policy now produced and admitted as Exhibit D.”  

What is an insurable interest? There is no comprehensive definition but we find that the definition given by the learned authors of Mac Gillivray and Dennis Brown on Insurance Law 4th Edition in Article 444 is more comprehensive than many. It reads:  

“Where the assured is so situated that the happening of the event on which the insurance money is to become payable would as a proximate cause involve the assured in the loss or dimunition of any right recognised by law or in any legal liability, there is an insurable interest in the happening of that event to the extent of the possible loss or liability.”  

The 165 cases of sardine is a valuable source of food to many and its loss is a heavy material loss. Can it be honestly argued that the respondent who has suffered by the non-delivery of this consignment has no insurable interest in the loss through non-delivery of this consignment shipped to him from Las Palmas? We are firmly of the opinion that he has such an insurable interest, and cannot see any merit in the grounds of appeal argued.   

In the absence of any provision to the contrary, express or implied, every contract of insurance is presumed to be made subject to proof of such interest as the law requires – See Macauva v. Northern Assurance Company (1925) AC 619 at 631. The contract is not void ab initio and the insurer may, on a claim being made waive or demand proof of interest.

The appellant never demanded proof of insurable interest in his pleading. The point was not taken in the court below and we see no ground for allowing it to be raised here.

We therefore see no substance in this appeal and we hereby dismiss it with costs to the respondent assessed at N140.00.

Other Citation: (1978) LCN/2074(SC)