National Insurance Corporation Of Nigeria V. Power & Industrial Engineering Company Ltd. (1986)

LawGlobal-Hub Lead Judgment Report

OBASEKI, J.S.C.

This appeal deals with a claim brought under a marine insurance contract between the appellant and the respondent and raises the important question of what constitutes a ‘Policy’ of marine insurance within the terms of the Marine Insurance Act, 1961.

The respondent in pursuance of its desire to contribute its quota to the ‘Feed the Nation Campaign’ or campaign again hunger in 1977 ordered 86,612 new double jute bags of rice from Bangkok in the Far East. The consignment which had an insured value of N1,231,459.00 was loaded onto the vessel “Eastern Saturn” for transportation by sea from Bangkok to Port Harcourt and or Lagos on the 30th day of December, 1977 (see Exhibit L7) and the ship set sail on the 3rd day of January, 1978 (see Exhibits ‘L’, ‘L1’ and ‘L2’).

This information was conveyed to the respondent by Exhibit L and Exhibit VVI Bill Note dated 26/1/78. By Exhibit 52, Exhibit VVI the respondent was advised by the United Bank for Africa that the Bank had received for the account of the respondent documents for goods sent per “M.V. Eastern Saturn” including B/L No. option – 1 dated 30/12/77 by Continental Enterprises (Bermuda) Ltd. covering 86,612 bags Thai Parboiled Rice.

The respondent was requested to collect the documents. Following the advice the respondent collected the documents and on receipt of Exhibits L, L1 to L7 and discovering that the consignment had no insurance cover, the respondent approached the appellant for an insurance cover.

The appellant agreed to issue a marine insurance open cover policy and on the 15th day of February, 1978, the appellant did issue the Marine Open Cover No. MA/MAT/78/MOC/0021 – Exhibit J. This Marine Open Cover, Exhibit J was forwarded by letter No.GCGU/CAG/000/264/OAA/ABA dated 14th February, 1978 Exhibit M. Subsequently, Certificate of Insurance No.16533 issued under the open contract No.MA/MAT/78/MOC/0021 Exhibit J was issued and forwarded by letter Exhibit N dated 23rd February, 1978. By letter Exhibit H dated April 13, 1978, the shippers, “Continental Enterprises (Bermuda) Ltd.” informed the respondent that the vessel M/V Eastern Saturn” had sunk without any trace and gone down to the bottom of the sea with all the consignments on board.

But before then, AMC International Limited by letter dated 13th March, 1978 Exhibit C copied for the respondent’s information, the letter dated 3rd March, 1978 received on 11/3/78 from Polinia & Company Ltd. of Hong Kong reporting that the vessel Eastern Saturn had sunk. The respondent, on this information, by letter dated 6th April, 1978 Exhibit D conveyed the information to the appellant and also forwarded to it photocopies of the report from the shippers sent to the shipping agents. The respondent then requested from the appellant advice on the processing of the necessary claims. The appellant reacted sharply and sent a letter Exhibit E dated 11th April, 1978disclaiming liability and complaining that as no premium had been paid there was no contract of insurance in existence between the respondent and themselves.

The respondent then wrote Exhibit P dated 21/4/78 drawing attention to the receipt Exhibit A for payment. However, by letter Exhibit F dated 27th April, 1978, the appellant confirmed that the premium had been paid but disclaimed liability on their own interpretation of the Open Cover contending particularly that they were not liable for any shipments made prior to 1st February, 1978. By letter Exhibit VI dated 9th May, 1978, the respondent formally claimed the insured value of N1,231,359 and requested early settlement. This was followed by a visit and letter Exhibit V2 dated 10th may, 1978asking for action to be taken on Exhibit V. This was also followed by letter Exhibit V3 dated 26th May, 1978 sent by the respondent forwarding copies of the Master’s Statement of protest with respect to the sinking of the vessel.

In reply, the appellant by letter Exhibit ‘w’ claimed that “no risk ever attached to them under the Open Cover” because although the declaration was made after the 1st February, 1978, the actual date of sending was prior to the inception of the Cover, the vessel having sailed from Bangkok, the port of shipment on the 3rd day of January, 1978.

This sounded the bell for the litigation over the matter which was commenced in the Federal High Court, Lagos. From the Federal High Court, it went on appeal to the Court of Appeal from whence it has come to this Court on appeal. By their amended particulars of claim filed in the Federal High Court by the respondent,

“The plaintiffs claim against the defendant is for the sum of N2,231,359.00 (two million, two hundred and fifty nine Naira) being special and general damages for breach of contract whereof the sum of N1,231,539.00 represent special damage and N1,000,000.00 represent’ general damages”.

Pleadings on the order of the Federal High Court were settled, amended, filed and exchanged by the parties and the issues joined went to trial before Belgore, J. At the hearing, only two witnesses testified. They were T. Ifeanyi Nzegwu, a Director of the respondent company and Sule Bamidele Balogun, the Manager of the respondent company. The appellant called no evidence and rested its case on the evidence adduced by the respondent’s witnesses. After the conclusion of evidence and the addresses of counsel, the learned trial judge, Belgore J. delivered a well considered judgment in which he awarded the respondent as special damages N1,231,359.00 with interest at 10% from 23/5/78 and N2,000.00 costs.

The appellant was naturally not satisfied with the judgment and so appealed to the Court of Appeal. After hearing submissions of counsel for both sides, the Court of appeal (Ademola, Mohammed and Kutigi, JJCA.) in a unanimously considered judgment dismissed the appeal. Ademola, JJCA, concluding his lead judgment (with Mohammed and Kutigi, JJCA. concurring), commented:

“All insurance contracts involve the taking of risk and therefore the occurrence of the event insured against cannot frustrate the contract. It is ludicrous to say the least, to tell the respondent that the loss of goods on the MN Saturn has put an end to the contract he concluded with the appellant, for that was the very thing that brought them together in the first instance”

The appellant was still not satisfied with the decision of the Court of Appeal and so appealed to this Court. The questions raised before the Court of Appeal by the appellant which did not receive answers favourable to the appellant re-echoed in the grounds of appeal filed with the Notice of Appeal to this Court by the appellant. The grounds of appeal in their final amended form read:

“1. The learned justices of the Court of Appeal erred in law when they held that exhibits ‘B’ and ‘J’ do not bind the respondent.

Particulars of Error

(1) the respondent founded its cause of action on exhibits ‘B’ and ‘J’ and specifically pleaded them.

(2) the respondent tendered in evidence exhibits ‘B’ and ‘J’.

(3) the respondent gave evidence that exhibit ‘J’ contains all the terms of the contract of insurance in question.

(4) Exhibit ‘J’ is, in view of the evidence of the plaintiff that it contains all the terms of the contract, a counter offer.

(5) After receiving exhibit ‘J’, the plaintiff accepted the counter offer by paying premium evidenced by exhibit ‘B’ on the terms contained in the said exhibit ‘J’,

(6) Exhibit ‘B’ incorporates all the terms set out in exhibit ‘J’.

The learned justices of the Court of Appeal erred in law in holding that because the issue of the necessity for a policy, was not raised on the pleadings, the appellant cannot rely on the legal result of its non-production.

Particulars of Error

(1) only facts relied upon need be pleaded but not the legal results of acts or omission of the plaintiff.

(2) paragraph II of the statement of defence is plea of the provisions of Marine Insurance Act 1961.

(3) It was pleaded that the contract was unenforceable.

(4) The plaintiffs claim did not ask for any particulars of any averment in the appellant’s statement of defence.

3. The learned Justices of the Court of Appeal erred in law when they acted upon parol evidence of the contract when the contract had been reduced into writing to wit, the Open Cover, exhibit ‘J’ which was specifically incorporated into exhibit ‘B’ the certificate of insurance.

Particulars of Error

(1) Exhibit L1 to Exhibit L7 were not part of exhibit ‘J’ and they contradict exhibit ‘J’.

(2) Oral evidence which contradict exhibit ‘J’ are inadmissible.

The learned justices of the Court of Appeal erred in law when they held that failure of the respondent to produce a Policy of Marine Insurance did not affect its enforceability.

Particulars of Error

(1) In the absence of the Policy, all other evidence is by section 24 of Marine Insurance Act, 1961, made inadmissible.

The learned Justices of the Court of Appeal erred in law when they held that “the doctrine of avoidance of contract because of common mistake has no place in insurance”.

Particulars of Error

(1) If before the conclusion of the contract of insurance, the goods or the subject matter of the contract of insurance has ceased to exist either by destruction of the same or by death (although unknown to both parties), the contract will be void because the insured will then have no insurable interest.

The learned Justices of the Court of Appeal misdirected themselves on the facts and in law when they held that there was a valid contract subsisting between the plaintiff and the defendant in January, 1978.

Particulars of Error

(1) By section 23 of Marine Insurance Act, 1961, a contract of marine insurance shall be deemed to be concluded when the proposal of the assured is accepted 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.

(2) Plaintiff’s witness testified that the premium was paid on 23/2/78 and certificate or cover/note was issued in respect thereof on 23/2/79 (see page 44 lines 30 and 31, of the record).

(3) The plaintiff’s witness agreed that the Open Cover is not a Policy or a certificate of insurance and that declarations of shipments must be made and premium paid on individual shipment (see page 22 lines 22 and 24-25).

(4) Exhibit ‘K’, a letter written by the plaintiffs admits that the contract of marine insurance was concluded by the acceptance of premium.

(5) The plaintiff’s Managing Director gave evidence that he accepts that an Open Cover does not cover a particular shipment until premium is paid on individual goods” .

7. The learned Justices of the Court of Appeal misdirected themselves on the facts and came to a decision which is erroneous in law when they held that the defendant was liable for the loss of goods which did not come within the period it agreed to insure the plaintiff’s goods.

Particulars of Misdirection

(1) Defendant agreed to insure goods shipped on or after 1st February, 1978;

(2) The plaintiff accepted the defendant’s Counter-Offer and paid premium on the 23rd February, 1978;

(3) The goods which are the subject matter of this action were shipped in January, 1978.

8. The decision is against the weight of evidence.”

The main questions for determination in this appeal therefore are:

(1) Whether there was a contract of marine insurance in existence between the appellant and the respondent in respect of 86,612 bags of parboiled rice valued at N1,231,459.00 on board the ship M/V Eastern Saturn.

(2) Whether Exhibits ‘B’ and ‘J’ together constitute policy of marine Insurance.

(3) Whether Exhibit ‘J’ alone is a policy of Marine Insurance

(4) Whether the loss of the 86,612 bags of rice when M/V Eastern Saturn sank on the 10th February, 1978 before the premium was calculated, demanded and was paid removed the liability of the appellant under the Marine Open Cover Exhibit ‘J’ and the certificate of insurance Exhibit ‘B’ issued under it.

It is desirable to consider the second and third questions for determination raised in this appeal before proceeding to deal with the other questions raised. Having given a short narration of the above, I shall turn to the Marine Insurance Act 1961 No.54 for a definition of a Policy of Marine Insurance that approximates to Marine Open Cover. I find the provisions of section 31 of the Marine Insurance Act apposite. The section deals with Floating Policy and reads:

(1) A floating policy is a policy which describes the insurance in general terms, and leaves the name of the ship or ships and other particulars to be defined by subsequent declaration;

(2) The subsequent declaration or declarations may be made by endorsement on the policy or in other customary manner;

(3) Unless the policy otherwise provides, the declarations shall be made in the order of dispatch or shipment. In the case of goods they shall comprise all consignment within the terms of the policy, and the value of the goods or other property shall be honestly stated, but any omission or erroneous declaration may be rectified even after loss or arrival, provided the omission or declaration was made in good faith.

(4) Unless the policy otherwise provides, where a declaration of value is not made until after notice of loss or arrival, the policy shall be treated as an unvalued policy as regards the subject matter of that declaration.”

The basis of all insurance transactions is utmost good faith.

Most certainly, Exhibit ‘J’ which shall receive more detailed treatment in the course of this judgment, in my opinion, falls within the definition of Floating Marine Insurance Policy. Exhibit ‘J’ is titled “Marine Open Cover No. MA/MAT/78/MOC/0021” and Exhibit B is titled “Certificate of Insurance No. 16533 issued under Open contract No. MA/MAT/78/MOC/0021. Exhibit B therefore is not a certificate of insurance standing on its own. It is an endorsement on Exhibit ‘J’ and declares the name of the ship, the port of loading and the port of discharge, the interest insured and the insured value. These were particulars omitted from Exhibit ‘J’. The conditions therein stated were as per Marine Open Cover No. MA/MAT/78/MOC/0021 Exhibit ‘J’ and Exhibit ‘B’ comes within the intendment of subsections (1) and (2) of section 31 of the Marine Insurance Act 1961 No. 54.

The declarations contained in Exhibit ‘B’ are those envisaged under subsections (1) and (2) of section 31. Subsection (4) of section 31 provides for a situation such as has not arisen in this case where the declarations were not made till after the loss. This case is slightly more fortuitous in that the declarations were made before the loss and before information about the loss of the subject matter was received by the respondent and communicated to the appellant.

The pleadings were not deficient in any material particular save that the words “Marine Insurance Policy” were not used to describe the document pleaded. For a better appreciation of the facts pleaded, I will proceed to set out fully paragraphs 3, 4, 6, 7, 8, 9, 10, 12, 18, 19 and 21 of the amended statement of claim which I consider very material for purposes of this judgment.

3. The plaintiff ordered 4,000 metric tons (86,612 bags) of rice from the Continental Enterprises (Bermuda) Limited in or about November/December, 1977.
4. The said goods were shipped per M.V. “Eastern Saturn” which sailed from Bangkok on 3rd January, 1978.
5. The plaintiff was sent the necessary shipping documents as per letter dated 9th January, 1978 addressed to the said plaintiff by Messrs Tai Sae Company Limited;
6. In consequence of the matters pleaded in paragraphs 5 and 6 of this further amended statement of claim, the plaintiff on receipt of the said shipping documents in or about mid January, 1978 approached the defendant to arrange for the goods to be insured after showing the defendant the said shipping and other documents and the defendant agreed to do so and promised to confirm firm this and to advise the plaintiff on the premium payable after calculation.
7. The defendant confirmed the said agreement referred to in paragraph 7 above by the issue of a Marine Open Cover Note No. MA/MAT/78/MOC/0021 under its covering letter dated 14th February, 1978.
8. After the defendant had properly calculated the amount of the premium payable, it issued the necessary Debit Note No. MA 6845 dated 23rd February, 1978 on which the amount of N12,776.39 was shown as the premium in respect of certificate No. 16533 both of which were forwarded under cover of its letter dated 23rd February, 1978 to the plaintiff.
9. On the payment of the amounts of premium payable as demanded by the defendant, the plaintiff was issued with a comprehensive receipt No. 002907 of 24th February, 1978.
10. The said goods and all of them became a total loss by the perils insured against by the said defendant.
11. Formal demands for settlement of its claims were made by the plaintiff by letters dated 9th May, 1978, 10th May, 1978 for the total value of the said goods amounting to N1,231,359.00.
12. The defendant wrongfully maintained its stand in its letter dated 22nd June, 1978 and offered to refund and did refund the premium of N12,776.39 paid on certificate No. 16533 relating to this claim which said refund the plaintiff rejected in its letter dated 20th July, 1978. The plaintiff returned the defendant’s said cheque.
13. The plaintiff suffered loss and damage as a result of the defendant’s breach of contract as well as the profits it would have earned from the availability of the funds due to it on other business transactions.”

Equally, paragraphs 2, 3, 4, 5, 6, 7, 8, 9,10,11 and 12 0f the further amended statement of defence are relevant, pertinent and material:

“2. The defendant denies paragraphs 1,3,5,6,7,8,11,12,13,15, 17,21 and 22 of the statement of claim and puts the plaintiff to the strictest proof thereof.

3. The defendant admits paragraphs 2, 4, 9, 10, 14 and 16 of the statement of claim.
4. With reference to paragraph 15 of the statement of claim the defendant avers that the plaintiffs claim was repudiated for many reasons among which are the following, namely:

(a) non-disclosure of material facts contrary to section 20 of the Marine Insurance Act No.54 of 1961, e.g.

(i) that the boat carrying the goods had left the port of shipment on 3rd January, 1978, a date outside the date stipulated by the Open Cover;

(ii) that the boat had been abandoned by the crew on the 10th February, 1978 and had been declared lost when he on the 23rd February, 1978 made his declaration under the Open Cover and paid premium thereon.

5. With reference to paragraph 19 of the statement of claim, the defendant admits that the plaintiff has no right to the refund of the premium paid on the ground of fraudulent non-disclosure of material facts.

Particulars

Failure to disclose that the ship had sailed long before 1st day of February, 1978;

Failure to disclose that the ship had been abandoned by its crew on the 10th February, 1978 and had been reported lost on the 15th February, 1978.

6. With reference to paragraph 20 of the statement of claim the defendant avers that it has dealt with the plaintiff on the basis of absolute good faith and whether there was any incident or not it felt bound in good faith to reject all declarations for shipments before 1st February, 1978 which are outside the Open Cover.
7. The defendant avers that by the Open Cover issued by the defendant only shipments or sendings on and after the 1st day of February, 1978, were covered whereas the subject matter of the ship’s claim was shipped on, or before the 3rd day of January 1978 from Bangkok.
8. The defendant will contend at the trial that the Open Cover was entered or obtained by the plaintiff after the boat ‘Eastern Saturn’ carrying the parboiled rice had been abandoned by its crew and master at 10.00 hours G.M.T. on the 10th February, 1978 and before any certificate of insurance or any contract of insurance covering or concerning the goods in question was issued or entered into.
9. The defendant will contend at the trial that on the 23rd day of February, 1978, when the plaintiff obtained a certificate of insurance in respect of the goods a broadcast had gone out to all ships of the loss of the ship ‘Eastern Saturn’
10. The defendant avers that the goods which form the subject matter of the plaintiffs claim were not shipped within the time expressly limited by the Open Cover and the certificate of insurance issued as result of the declaration purported to be made under the said Open Cover is void and the defendant cannot be made liable thereunder.
11. The defendant will at the trial rely on the provisions of the Marine Insurance Act 1961 Laws of Nigeria and contend that the contract of Marine Insurance is not enforceable.
12. The defendant will at the trial rely on the Open Cover dated the 15th day of February, 1978, the certificate of insurance No. 16533 dated the 23rd day of February, 1978, plaintiff’s letters dated 6th April, 21st April, 1978; 9th May, 1978 and 20th June, 1978.”‘

At the trial the plaintiff/respondent called evidence in support of its claim. As mentioned earlier above, the defendant called no evidence to prove and establish the facts pleaded in paragraphs 4, 5, to 8, 9 and 10 of the statement of defence. The plaintiff called two witnesses, T. Ifeanyi Nzegwu (p.w.1) Director of plaintiff/respondent company and Sule Bamidele Balogun (p.w.2) the Manager of the plaintiff/respondent company to testify.

They testified and tendered in evidence the documents pleaded. These included:

(1) Exhibit ‘J’, Marine Open Cover No.MA/MAT/78/MOC/0021 dated 15th February, 1978 issued by the appellant;

(2) Exhibit ‘B’, certificate of Insurance No.16533 dated 23rd February, 1978 issued under Open Contract No.MA/MAT/78/MOC/0021;

(3) Exhibit A – Receipt for N13,552.53k being premium paid on Marine Insurance Certificates No.16532, and 16533 dated 24th February, 1978;

(4) Exhibit ‘0’, letter dated 9/1/78 forwarding shipping documents from Tai Sae Company Ltd. to the appellant to wit Exhibit ‘L1’, freight list, Exhibit ‘L2’, manifest dated 3/1/78, Exhibit ‘L3′ Bills

of Lading dated 31/12/77;

Exhibit L4’ Invoice dated 6/1/78;

Exhibit ‘L5’ Invoice dated 6/1/78;

Exhibit ‘L6’ Certificate of Origin dated 30/12/77;

Exhibit ‘L7 Bill of Lading dated 30/12/77.

Mr. Nzegwu, p.w.1 in his testimony categorically asserted that Exhibit B is a certificate of insurance and that Exhibit ‘1’ contains all the letters (sic) [terms] of the contract. He also asserted that his transaction with the appellant did not start with Exhibit B and that he had an open cover Exhibit ‘J’ issued earlier by the appellant. It was on the advice of the Manager of the appellant company against taking individual policy that he opted for an open cover. He then made the proposals which were accepted by the appellant in January, 1978. Exhibit ‘J’, the Marine Open Cover was later issued and forwarded.

On the issue of the existence or non-existence of a policy of marine insurance, Belgore, J. in his judgment said:

“The last point raised by the defendant was that section 24 of the Marine Insurance Act made other evidence on marine policy inadmissible except the policy itself. The defendant did not make this point any issue in his pleadings; references were made in the statement of defence of the marine policy not to be enforceable because of one reason or another, but the issue of non-existence of the policy was never mentioned. Though I agreed with learned counsel for the defendant that legal points should not be pleaded, but the existence or non-existence of marine policy was an issue of fact known to the defendant because they were to prepare the document, which must be pleaded. …

Furthermore, the marine insurance policy document was still with the defendant, they did not release it and now they were accusing the plaintiff of not producing it. The principle laid down in section 148(d) of Evidence Act should apply to the action of the defendant…

Infact, the practice had been for a defendant in such a case to produce the document. In ‘Chitty on Contracts’, Vol.2, Specific Contracts, 24th Edition footnote 46 to paragraph 3938, it is stated:

“However, underwriters will as a matter of course, issue a policy in order to enable the assured to bring an action, even if they deny liability”.

The issue of the existence or non-existence of a policy was again raised in the Court of Appeal. Dealing with this question, Ademola, JCA, (with whom Mohammed and Kutigi, JJCA concurred) observed:

“There was a submission to the effect that respondent cannot in any event succeed since the policy of insurance has not been pleaded and other documents Exhibits A, Band J tendered showing the existence of contract could not take its place. I think that the learned Judge has dealt very well with it in his judgment by pointing out that this issue was not raised on the pleadings and that the practice of underwriters such as the appellant in this appeal is to supply a stamped policy to respondent to maintain action as noted in ‘Chitty on Contract’ Vol.2 Specific Contracts 24th Edition paragraph 3938 footnote 46. I cannot improve on that”.

The answer to this question is not far to seek and I think that both the learned trial Judge and the learned Justices of the Court of Appeal evaded the question and unfairly castigated the appellant. Undoubtedly, the statutory provisions as contained in section 24(1) of the Marine Insurance Act 1961 constitute an absolute bar on the admissibility of evidence of marine insurance contracts in civil proceedings unless embodied in a policy of marine insurance and unless any statute otherwise provides.

More particularly, the section reads:

“Subject to the provisions of any statute, a contract of marine insurance shall not be admissible in evidence unless it is embodied in a marine policy in accordance with the form in the First Schedule to this Act or to the like effect. The policy may be executed and issued either at the time when the contract is concluded, or afterwards; and subject to the provisions of this Act and unless the con of the policy otherwise requires, the terms and expressions mentioned in the said First Schedule shall be construed as having the scope and meaning in that Schedule assigned to them”.

On what the policy must specify section 25 of the Marine Insurance Act stipulates that:

“A marine policy shall specify the name of the insured or of some person who effects the insurance on his behalf’.

A policy may be either valued or unvalued [section 29(1) of the Marine Insurance Act]. An unvalued policy which does not specify the value of the subject-matter insured, but, subject to the limit of the sum insured, leaves the insurable value to be subsequently ascertained in the manner specified in section 18 [see section 30 of the Marine Insurance Act 1961].

Mr. Molajo, SAN., learned counsel for the appellant, rightly, in my view, submitted that the necessity for evidence of a policy of marine insurance to prove a contract of marine insurance cannot be waived. I agree with him completely as the provisions of section 24(1) of the Marine Insurance Act are couched in mandatory terms. (see Abolade Agboola Alade v. Salawu Jagun Olukade (1976) 2 SC.183 at 189) While not disagreeing with that submission, Mr. Sofola, SAN., learned counsel for the respondent countered by submitting that Exhibit ‘J’ and Exhibit ‘8’ constitute the policy. In particular, he drew the court’s attention to certain clauses in Exhibit J where the document was described as a policy of marine insurance. Mr. Molajo disagreed with the submission that Exhibit ‘B’ and Exhibit ‘J’ constitute a policy for the purpose of proving the contract of marine insurance.

He submitted that Exhibit ‘B’ being a certificate of insurance is inadmissible and cited Diamond Alkali Export Corporation v. Bourgeois (1921) All ER Re.283 at 289-291; Scott v. Barclays Bank Ltd. 14 Lloyd L. Rep. 142 at pages 114 & 115; English Insurance Co. v. National Benefit Insurance Co. Ltd. (1928) All ER 441 at pp.443-444; (1929) AC.114 at 119 & 121.

An examination of Exhibit ‘J’ shows that it contains all the details required of a policy under sections 24 and 25 of the Marine Insurance Act 1961 and the First Schedule to the Act.

Its contents (in part) read:

“It is hereby agreed to hold covered Messrs Power & Industrial Engineering Co. Limited hereinafter called the Assured, subject to the terms and conditions hereunder for an open amount not exceeding N3 million (three million Naira) per anyone vessel or conveyance or in anyone location.

ESTIMATED ANNUAL TURNOVER 30 MILLION

TERMS AND CONDITIONS REFERRED TO: As per attached clause OPEN COVER always open for the full amount irrespective of declaration made for all shipments and/or sendings on and after 1st February, 1978 but subject to cancellation by either Assured or Assurers giving notice in writing as hereinafter provided”.

“INTEREST:..Rice in jute bags BASIS OF VALUATION:

In the event of loss, accident or arrival prior to declaration, it is hereby agreed that the basis of valuation shall be C & F (invoice value) plus percentage to be decided by the clients.

PER: Any approved steamer and/or steamers and/or conveyances as per institute classification clause or held covered.

VOYAGES: World wide – Apapa/Lagos/Port Harcourt

CONDITIONS OF INSURANCE: Subject to the Institute Cargo Clauses (all risks)

Subject to the Institute, War, strikes, riots and civil commotion clauses.

Subject to the Institute classification clause

Subject to the Port delay Clause

Subject to an excess of N950.00 each and every loss except total loss

Warranted name of vessel advised prior to sailing or within a reasonable period thereafter and any coverage

Additional Premium paid before arrival

Warranted goods cleared within 15 days on discharge

Warranted discharge supervised by Lloyd’s or other professional handling agent and any loss or damage surveyed immediately thereafter by the same agent.

Subject to replacement clause attached

Excluding electrical and mechanical derangement

Excluding rust, oxidation and discolouration

PREMIUM PAYABLE: Marine-1% + War Scale

Cement – .375% + Scale War

DECLARATIONS TO BE ADVISED TO:

The Managing Director,

The National Insurance Corporation of Nigeria,

Marine Department,

118/120 Broad Street,

P. O. Box 1100,

Lagos,

Nigeria.

CANCELLATION: This open cover is subject to cancellation by either the Assured or the Assurers giving thirty days notice in writing in respect of Marine risks, seven days notice in respect of war and strikes risks, and forty eight hours notice for strike in respect of shipments to and from Canada or the United States of America.”

The detailed provisions set out in Exhibit ‘J’ are even more than those set out in the Form in the First Schedule.

The opening words of the Institute War Clauses which read:

“1. This Policy covers…”

cannot but lead to the conclusion that Exhibit ‘J’ is a policy. it there forcefully satisfies the description in section 24(1) of the Marine Insurance Act 1961 and can be termed a policy to the like effect as the form of policy in the First Schedule. Exhibit ‘B’ being a document issued under Exhibit J has no independent existence. It is not a policy. It is a certificate of insurance showing that the policy Exhibit ‘J’ exists in the hands of the respondents in favour of the respondent (sic).

The case of Diamond Alkali Corporation v. Bourgeois (supra) relied on by counsel for the appellant in support of his contention that Exhibit ‘B’ and Exhibit ‘J’ are inadmissible can be distinguished on the facts. In that case, only the certificate of insurance was tendered and sued upon unlike this case where both Exhibit ‘J’ the marine open cover which I have classified as a Floating Policy and Exhibit ‘B’ the certificate of insurance issued under Exhibit ‘J’ are in evidence.

Me Cardie, J. brought this out clearly when at page 209 he observed and commented:

“In the Wilson Holgate Case (19) Bailhache, J. said (19202 KB at p.7):

‘It must be borne in mind that in dealing with certificates of insurance, I am not referring to American Certificates of Insurance which stand on a different footing and are equivalent to policies, being accepted in this country as policies’.

It will be observed that Bailhache, J. used the word “accepted” and not the words “bound to accept”. The sellers here rely on that passage and also on the notes to ‘Scrutton and Mackinnon on

Charterparties’ (10th Edition) p.185 where it is said:

‘A certificate of insurance issued by an insurance company under a floating policy upon which document the company can be sued would suffice in any case.

The buyer strongly challenges that view and his counsel require me to express an independent opinion on the point. I do so with the greatest diffidence and reluctance in view of the weight carried by even the dicta of such experienced and distinguished judges as Scrutton, L J. and Bailhache. J. I feel bound to express my view, not upon the strict law of the matter. I assume that this document (which is not stamped) was given under a floating policy issued by the insurance company to D.A. Horan. Now the certificate is not a policy.

It does not purport to be a policy. This is conceded by counsel in his able argument for the sellers. It is a certificate that a policy was issued to D.A. Horan and it incorporates the terms of that policy. Those terms I do not know nor is there anything before me to indicate that the buyers knew them. The certificate does not show whether that policy was in the recognized or usual form or not. The certificate therefore does not contain all the terms of the insurance. Those terms have to be sought for in two documents – namely, the original policy and the certificate…

If he sued simply on the certificate, he could put in a part only of the contract for the other terms of the contract namely, the conditions of the actual policy would be contained in a document not in his control and to the possession of which he is not entitled”.

In the case of English Insurance Co. Ltd. v. Official Receiver of National Benefit Assurance Co. Ltd 1928 All ER Rep. 441, there was no dispute about the facts and the parties agreed that no insurance policies were ever issued to the appellant company by the National Company in respect of risks accepted by the latter under the terms of the agreement. The only question to be decided was whether the English Insurance Company Ltd. was disentitled from proving in the liquidation of the National Assurance Company Ltd. by reason of the fact that no stamped policies of marine insurance were issued by the English Company to the National Company as regards any matters coming within the agreement in participation agreement. The House of Lords (Lord Hailsham, LC., Viscount Sumner and Lord Atkin) held that the agreement was a “contract for sea-insurance” within section 93(1) of the Stamp Act 1891 and a “contract of “marine insurance” within section 22 of the Marine Insurance Act 1906and the transactions under it not having been embodied in any marine policy was invalid and inadmissible, in evidence, so that the claim failed.

It is also quite clear and I hold that under our law the Marine Insurance Act 1961, a contract of marine insurance is inadmissible in evidence unless it is embodied in a marine policy. In view of the importance of this question, I called for Exhibit ‘J’ in its original form. I have now examined Exhibit ‘J’ in its original form as admitted in evidence. My findings are most revealing. I am sure that counsel for the appellant is unaware of the clear indication at the back of the document and in the document that it is a marine policy. The footnote at the back reads:

“This policy should be read carefully and its terms notes.”

Above that are printed:

“Policy No ….

Name ….

Due Date ….”

There can therefore be no question about Exhibit ‘J’ not being a policy and I hereby reject the submission of Mr. Molajo, SAN., learned counsel for the appellant that Exhibit ‘J’ is not a policy. I hold that it is a policy within the meaning of marine policy under the Marine Insurance Act 1961 section 2(1), section 245(1) and section 25.

The failure of the High Court, Belgore, J. and the Court of Appeal to address themselves to these two questions gave the impression that they did not consider Exhibit ‘J’ a policy of marine insurance and has led counsel for the appellant to so contend forcefully before us. I am at a loss to understand how this simple fact which appears in bold letter on Exhibit ‘J’ escaped the notice of both counsel throughout the course of argument in all the courts.

This disposes of grounds 2 and 4 of the grounds of appeal and questions 2 and 3 of the questions for determination.

Turning to question 1 whether there was a concluded contract the existence of Exhibit ‘B’ and Exhibit ‘J’ enables me to answer the question unequivocally in the affirmative. The law is settled and stipulates that the policy may be executed and issued either at the time the contract is concluded or afterwards [section 24(1) of the Marine Insurance Act 1961].

At the High Court, the learned trial Judge, Belgore, J. dealing with this question in his judgment said:

“From the moment the proposal was made, accepted and demanded premium paid, a valid contract was subsisting between the plaintiff and the defendant”.

Earlier, the learned trial Judge said:

“I do accept the plaintiff’s evidence that he went to the defendant to insure his cargo being carried by “M.V. Eastern Saturn” in January, 1978 and that it was on that basis that the plaintiff was given a Marine Open Cover [Note] No.MA/MAT/78/MOC/0021 as alleged in paragraph 8 of the statement of claim.

The Court of Appeal (Ademola, Mohammed and Kutigi, JJCA.) answered the question in the affirmative as well, for Ademola, J.C.A. in his lead judgment said:

“In my view, the answer to the argument is simple. The learned trial judge has rightly found on the uncontradicted evidence before him that the respondent ordered 4,000 metric tons of rice; that the ship carrying the rice left Bangkok by 3rd January, 1978 and the respondent agreed to insure the goods on it” that there was insurance effected in January, 1978 between the parties and cover note Exhibit ‘J’ issued thereby satisfying section 23 of the Marine Insurance Act 1961″.

Exhibit T was erroneously referred to in the judgment as a cover note. It is Marine Open Cover, a floating policy of marine insurance.

The appellant’s complaints in ground 1 of the grounds of appeal that the learned Justices of the Court of Appeal erred in law when they held that Exhibits ‘B’ and ‘J’ do not bind the respondent is well grounded. But erroneous opinion has made no difference to the fortunes of the appellant in this B appeal. The con in which the statement was made is innocuous. The whole statement reads:

“It is necessary to state that both Exhibits ‘B’ and ‘J’ are not documents inter parties by the appellant and the respondent. Both documents are the acts of the appellant alone and are in no way binding on the respondent. The rule of exclusion under section 131(1) of Evidence Act Or oral evidence to contradict, alter, add to or vary the content of Exhibits ‘B’ and T does not apply.

See section 133 of Evidence Act. Therefore the case of Osikoya v. Salvador Hurtado Salaz 4 WACA 91 relied on by counsel for the appellant has no evidence”.

The Court of Appeal was considering the argument that parol evidence has been given by the respondent’s witnesses to vary the contents of Exhibits ‘B’ and T. The contents of Exhibits ‘B’ and ‘J’ reflect the agreement between the appellant and the respondent and having founded its claim on Exhibit ‘B’ and Exhibit T and pleaded them it cannot, in my opinion, be contended without contradictory evidence that the respondent is not bound by them. There are conditions and warranties express and implied which bind the assured. See sections 34 to 50 Marine Insurance Act, 1961.

A careful study of the pleadings filed and the cases presented to court shows that the appellant abandoned the vital areas of the defence set up in its pleadings.

Parties are bound by their pleadings and are not allowed to set up a case different from that set out in their pleadings. The main defences set up and contained in paragraphs 4, 5, 6, 7,8, 9 and 10 are:

(1) non-disclosure of material facts;

(2) fraudulent non-disclosure;

(3) rejection of shipments before 1st February, 1978;

(4) that the contract of insurance was concluded after the boat ‘M. V. Eastern Saturn’ with the goods had been lost at sea;

(5) that the certificate of insurance issued as a result of the declaration purported to be made under the marine open cover is void;

(6) that the contract of marine insurance is not enforceable under the Marine Insurance Act 1961.

Whereas the respondent’s witnesses gave evidence totally destroying the above defences, the appellant failed to adduce any iota of evidence in support of any of the above defences and as such none of the defences was made out. The evidence adduced by the respondent through its witnesses does not support the defences. Further, the allegation that ‘the contract of marine insurance is not enforceable’ does not, in my view, amount to a pleading that “the contract of marine insurance is inadmissible”. A contract can be admissible and yet be unenforceable. This arises where facts making the contract void or voidable are clearly pleaded and proved by evidence. Fraudulent non-disclosure of material facts easily comes to mind as a ground which when established, entitles an insurer to avoid the contract. A contract of marine insurance may be perfectly valid but because it is not embodied in a marine policy it remains inadmissible by virtue of section 24(1) of the Marine Insurance Act 1961. Being inadmissible, the court cannot take cognizance of its existence. Alade v. Olukade (1974) 6 SC.183

It is therefore in the interest of parties to note that pleadings must be strictly adhered to in the conduct of their cases. See African Continental Sea ways Ltd v. Nigerian Dredging, Roads and General Works Ltd., (1977) 5 SC.235, 243, 247-250;

Emegokwe v. Okadigbo (1973) 4 SC. 113 at 117

Akpapuna v. Obi Nzeka II (1983) 7 SC. 1 at 24 and 62

Ferdinand George v. The United Bank for Africa (1972) 8-9 SC. 264 at 273-274 (1972) 1 All NLR (Part II) 347 at 353

Metalimpex v. A.-G. Leventis & Co. (Nig.) Ltd. (1976) 2 S.C. 91;

George & Ors. v. Dominion Flour Mills Ltd. (1963) 1 All NLR. 71 at 77.

Ground 5 raises a hypothetical and an academic question. It must be restated with emphasis that courts of law in this country are not established to deal with hypothetical and academic questions. They are established to deal with matters in difference between parties and consequently, their functions involve dealing with all relevant questions arising therefrom to enable them reach a decision on the matter. See section 6(6)(b) Constitution of the Federal Republic of Nigeria 1979 as amended. Ground 5 therefore fails.

With regard to the contention of learned counsel for the appellant in ground 6, the content of Exhibit ‘B’ is revealing. It states, inter alia,

“Certificate of Insurance No.16533 Issued under Open Contract No.MA/MAT/78/MOC/0021…

This is to certify that the Corporation has insured the under-mentioned goods for the voyagers) and value(s) stated on behalf of Power & Industrial Engineering Co. Limited.

PER EASTERN SATURN

FROM BANGKOK to PORT HARCOURT and/or LAGOS

INTEREST: 86,612 parboiled rice in new double jute bags

INSURED VALUE: N1,231,459.00 (One million two hundred and thirty one thousand four hundred and fifty nine Naira only) CONDITIONS: As per Marine Open Cover No.MA/MAT/78/MOC/0021”.

The certificate of insurance is therefore by its express terms an affirmation that there was in existence an open contract embodied in Exhibit ‘J’ under which it was issued and certified that the insurance was in respect of the voyage per ‘M. V. Eastern Saturn’ from Bangkok to Port Harcourt and/or Lagos in respect of 86,612 new double jute bags of parboiled rice valued N1,231,459.00. The question may then be asked whether this insurance was not referable to:

(1) the boat;

(2) the rice; and

(3) the voyage

mentioned in Exhibits ‘L’, ‘L1 to L7 which, according to the evidence were shown to the appellant to indicate the goods, the boat and voyage in respect of which insurance was sought. The answer is undoubtedly in the affirmative and this lays the defence of non-disclosure of facts and fraudulent non-disclosure finally to rest.

In Marine Insurance Co. Ltd. v.Grimmer (1944) 2 All ER.197 Scott, L.J said at 199:

“Even if the policy sued on had been an original insurance effected by the shippers of the sugar, it is indisputable that on its true interpretation, it would have operated retrospectively to the loading of the insured goods on the carrying ship. That is inherent in every voyage policy in the old Lloyd’s Form (now scheduled to the Act)”

There is here sufficient uncontradicted oral and documentary evidence to establish that the insurable interest or subject matter was, to the knowledge of the appellant, being conveyed by ‘M.V. Eastern Saturn’ which sailed from Bangkok on 3rd January, 1978. The acknowledgment of this fact in Exhibit ‘B’ constitutes a necessary variation. With much elaboration, the respondent, by pleading the documents Exhibits ‘B’ and ‘J’ and tendering them in evidence, is simply saying that their contents represent the agreement entered into between the appellant and itself, the respondent. A contract of marine insurance is a contract of indemnity and hence the policy and or insurance certificate bears the signature of the insurer only. The proposals bear the signature of the respondent so that the respondent cannot properly disclaim its obligations under the contract and there are many.

Ground 3 complains of the Court of Appeal acting on the parol evidence of the contract when the contract had been reduced into writing, Exhibit T and Exhibit ‘B’. Learned counsel for the appellant, complained that Exhibits ‘L1’ to ‘L7 were not part of Exhibit J and that they contradict Exhibit ‘J’. He then submitted that oral evidence which contradict Exhibit ‘J’ were inadmissible. The question may be asked whether Exhibits ‘L1’ to ‘L7’ contradict Exhibit ‘J’. I do not think so.

The appellant has been unable to show that the Rules of Evidence preclude the respondent from adducing evidence to show that Exhibit ‘J’ and Exhibit ‘B’ were issued by the appellant in respect of the bags of rice covered by the documents including Bills of Lading Exhibits ‘L1’ to ‘L7. The fact that Exhibit J limited the time the risks insured against attaches to shipment and sendings after 1st February, 1978 which is a reflection of appellant’s choice cannot constitute a barrier when Exhibit ‘B’ which was issued after declarations were made lifted the insured interest from Exhibit ‘L7. I find no substance in this ground. It is to be observed that the insured interest on the evidence led was very much in existence on board “M.V. Eastern Saturn” at Sea on 1st February, 1978.

Since the open cover Exhibit ‘J’ is a policy embodying the contract, the question of counter-offer does not arise. Exhibit ‘B’ conclusively shows that the parboiled rice in 86,612 new double jute bags valued N1,231,459.00 on board the ‘M. V. Eastern Saturn’ in transit from Bangkok to Port Harcourt and/or Lagos were insured as per Marine Open Cover No.MA/MAT/789/MOC/0021. The complaint in ground 5 is based on the erroneous assumption that the subject matter of the contract, i.e. 86,612 bags parboiled rice had ceased to exist before the contract was concluded. There is no basis for such assumption in view of the evidence on record. It is undoubtedly the law that if the subject matter of the contract of insurance had ceased to exist before the contract of insurance is concluded, even though unknown to both parties, the contract is void.

1. Pritchard v. Merchant and Tradesmen’s Mutual Life Assurance Society 140 ER 885 at 892
2. Couturier v. Hastie (1843-60) All ER. Rep. 280 at 284.
3. Oceanic Steamship Co. v. Faber (1907) 23 TLR. 673.
4. Scott v. Coulson (1903) 2 Ch. 249.
5. Joseph Constantine Steamship Line Ltd. v. Imperial Smelting Corp. Ltd. (1941) 2 All ER. 165 at 170

The evidence established that the boat ‘M.V. Eastern Saturn’ sank on the 10th of February 1978, that the risks or perils insured against by Exhibit ‘J’ attached from the 1st day of February, 1978, and more importantly, that the contract was concluded in late January, 1978.

In Exhibit ‘J’, the Institute Cargo Clauses (all Risks) in Clause 1 stipulates that:

“This insurance attaches from the time the goods leave the warehouse or place of storage at a place named in the policy for the commencement of the transit, continues during the ordinary course of transit and terminates either on delivery

(a) to the consignee or……

(b) to any other warehouse ….

(i)……

(ii) ….

or

(c) on the expiry of 15 days after completion of discharge over-side of the goods hereby insured from the oversea vessel at the final port of discharge whichever first occurs.”

and in Clause 5

“This insurance is against all risks of loss of or damage to the subject matter insured…… ”

Exhibit ‘M’ – the letter dated 14th February, 1978 under whose cover Exhibit ‘1J was forwarded makes it reasonable to presume even without evidence that the contract of marine insurance was concluded before that date.

The letter reads:

“The Manager,

Power & Industrial Engineering Company,

P.O. Box 3869,

Lagos.

“Dear Sir,

Marine Open Cover No. MA/MAT/78/MOC/0021

Power & Industrial Engineering Company Ltd.

We forward herewith in duplicate our Marine Open Cover No. MA/MAT/78/MOC/0021 which we trust you will find in order.

Yours faithfully,

Signed: A. Komolafe

Marine & Aviation Manager”

Exhibit ‘J’ is not a proposal as erroneously submitted by counsel for the appellant. It contains all the terms of the contract of marine insurance. The contention of learned counsel for the appellant that if Exhibit ‘J’ is an insurance of every shipment that it is a void contract of insurance, is untenable in the face of the express provision of the Marine Insurance Act section 24(1), 29, 30 and 31 which allow of Floating Policy and Unvalued Policy, Exhibit ‘J’ ex facie shows that the perils or risks insured against attaches from 1st February, 1978 whereas Exhibits ‘C’, ‘G and J’ show that the ship went down with the subject matter and was lost on 10th February, 1978.

Learned counsel for the appellant has by his arguments called on us to reverse the concurrent findings of fact. Having examined the submissions of counsel for the appellant, carefully, I find no basis on which this Court can disturb the findings of fact made by the Federal High Court, Belgore, J. and the Court of Appeal that Exhibit ‘1’ and Exhibit ‘B’ were issued by the appellant in respect of shipment made on board ‘M.V. Eastern Saturn’ (covered by Bill of Lading Exhibit L7) which sailed from Bangkok to Port Harcourt and or Lagos on 3rd January, 1978.

One disturbing feature in this appeal is the failure of the Federal High Court and the Court of Appeal and indeed counsel for the parties to observe that Exhibit ‘J’ is a marine policy as declared on the face of it. It was pleaded along with Exhibit ‘B’ and on them the action of the plaintiff/respondent was founded.

If this fact had been appreciated, the reasons for the judgments of the two courts below would have borne a different orientation.

With regard to the 4th question raised which has been impliedly answered above, I would, in particular, draw attention to the agreement under the head: “Basis of Valuation” in Exhibit ‘J’. It has been set out above but a repetition here of the agreement will forcibly bring out and emphasize the extent of liability undertaken by the appellant. It reads:

“In the event of loss, accident or arrival prior to declaration, it is hereby agreed that the basis of valuation shall be C & F (Invoice value) plus percentage to be declared by the clients”

The voyages covered is from any port in the world to Apapa/Lagos/Port Harcourt from the 1st of February, 1978.

Payment of Premium:

Learned counsel for the appellant contended that as the premium was not paid till the 24th day of February, 1978, the contract of insurance was void. I am unable to accept this submission in view of clause 4 of the Institute Cargo Clauses (All Risks) in Exhibit ‘1’. That clause reads:

..Held covered at a premium to be arranged in case of change of voyage or of any omission or error in the description of the interest, vessel or voyage.”

and when Exhibit ‘B’ was issued, it was accompanied by Debit Note Exhibit ‘O’ dated 23rd February, 1978 which demanded payment in these terms:

“Unless otherwise stated, this account must be settled within 14 days.”

The respondent, on the 24th day of February, 1978 did pay the premium and obtained receipt Exhibit ‘A’. Section 53 of the Marine Insurance Act 1961 No.54 dealing with the time when premium is payable states:

“Unless otherwise agreed, the duty of the assured or his agent to pay the premium and the duty of the insurer to issue the policy to the assured or his agent are concurrent conditions, and the insurer shall not be bound to issue the policy until payment or tender of the premium.”

The words ‘Premium to be arranged’ have been held to mean premium to be agreed. Libercan Insurance Agency Inc. v. Mosse (1977)2 Lloyds Rep 560 QBD. at 568. The clause does not contemplate any alteration in the terms of the insurance other than in respect of premium.

A contract of insurance may involve merely a promise to pay the premium. It is not the law that there must be implied in a contract of insurance a provision that the right of indemnity by the assured is conditional on his previous payment of the premiums. In support of and to emphasise this point, I need only refer to the case of Wooding v. Monmowhshire and South Wales Mutual Indemnity Society Ltd. (1939) 4 All ER. 570 at 581 where Viscount Maughan said:

“My Lords, I am not sure that I understand the view of Grier and Mackinnon L.JJ. as to the facts in regard to the payment of premiums by the Company. The former states that the Company had failed to pay the premium in respect of Wooding and James and were in default in regard to it. I think Mackinnon, L.J, takes the same view. Both the Lord Justices appear to think that this being so, the Society was released from the risks in respect of the men. With the greatest respect, I am unable for reasons above stated, to agree that the company is shown to have committed any default whatsoever. They never were separate premiums payable after the five year period in respect of the men. There was a final call to be paid on February 28, 1930 which was assumed to cover all the 1923 cases. There is nothing to show that it was not paid either in cash or in account, and not long afterwards – namely, after completing the accounts up to the end of 1933 – we find that the Society is paying a large sum to the Company. Even if the call or some other call was not paid, however, I do not know why the majority of the Court of Appeal should assume that the Society was “off the risk”. There is, I think, no principle of law that there must be implied in a contract of insurance a provision that the right to indemnity by the assured is conditional on his previous payment of the premiums. As a matter of commercial good sense, there is a great deal to be said for terse phrase enunciated by counsel for the Society – “no premium no cover”. It is doubtless for the reason that insurance company usually require that the consideration for which they undertake to indemnify the assured must be paid before the risk attaches.

There is however no doubt that a contract of insurance may involve merely a promise by the assured or his broker to pay the premium, and this is implicitly acknowledged in such marine insurance cases as Roberts Security Co. (1897) 1 QB 111; 66 L.J. QB. 119; 75 L.T. 531 Universo Insurance Co. v. Merchants Marine Insurance Co. (1897) 2 QB. 93; 66 LJ. QB 564; 76 L.T. 748 and Bhugwandass v. Netherlands India Sea & Fire Insurance Co. of Batavia (1888) 14 App Cas 83.” (Italics Mine)

In the instant appeal, the contract involved merely a promise to pay the premium when ascertained and demanded. When it was calculated, ascertained and demanded. it was paid. The appellant is therefore bound to indemnify the respondent in respect of the loss of the 86.612 bags of parboiled rice.”

The appellant having agreed on terms as to payment of the premium C with the respondent, there is no substance in the submission that the premium paid when it was demanded was late and avoided the contract of insurance. The evidence adduced by the witnesses called by the respondent stands uncontradicted and the court is entitled to give it the full weight and value.

See Nwaboku v. Ottih (1961) 1 All NLR 487 at 490, Odulaja v. Haddad (1973) 11 SC. 3457, Nigeria Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 S.C. 79.

Unless there is a statutory prohibition against the admission of such evidence, evidence admitted without objection can be made use of by the court in arriving at its decision.

I find no basis for the contention of the appellant’s counsel that the loss of the subject matter on the 10th of February 1978 entitles the appellant company to avoid liability under Exhibit ‘J’ Exhibit ‘B’ The payment of the premium on the 24th day of February, 1978 was in compliance with the terms of the agreement between the parties.

The anger which the non-issuance of a policy by the appellant could have generated was dispersed by the discovery that Exhibit ‘j’ was a policy and Exhibit ‘B’ was issued under it. However, the absence of a cover note or F slip to indicate the time the contract of insurance was concluded which was sometime before the issuance of the policy Exhibit ‘J’ is a matter for concern and highly deprecated. Nevertheless, the speed with which Exhibit ‘j’ was issued is highly commendable.

In conclusion, I find that the learned trial Judge. Belgore. J. was perfectly justified in giving judgment against the appellant in the sum of N1,231.359.00 with costs. Likewise, the Court of Appeal properly dismissed the appellant’s appeal as being without substance. All the grounds of appeal fail.

I too would and I hereby dismiss the appellant’s appeal to this Court and affirm the decision of the Court of Appeal and the Federal High Court.

The appellant shall pay costs in this appeal assessed at N300.00 to the respondent.

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SC.194/1984