Royal Exchange Assurance Nigeria Plc. V. Michael G. Anumnu (2002)

LawGlobal-Hub Lead Judgment Report

NZEAKO, J.C.A.

This is an appeal against the judgment of Bala Umar, J., sitting at the High Court of Justice, Bauchi, Bauchi State of Nigeria delivered on 31st March, 1999.

The said High Court had given judgment in favour of the plaintiff/respondent in a claim for N250,070.00 special damages and N400,000.00 general damages for breach of contract. It awarded him N250,000.00 special damages.

The claim arose from an insurance contract whereby the respondent was said to have insured his premises at No.2 Gawo Road, GRA Bauchi, against tornado, storm earthquake and other calamities, with the defendant/appellant, an insurance company.

The controversy arose between the parties when the appellant failed to pay the respondent’s claim following a tornado and flood, said to have damaged the respondent’s insured premises. The respondent claimed that he had to effect repairs at his own costs after the appellant, inspite of demands, refused to reinstate the damaged premises or pay for its reinstatement.

Being dissatisfied with the judgment, the defendant has appealed to this court.

The appellant had filed 7 grounds of appeal by his notice of appeal filed on 1/4/99.

In accordance with rules of the Court of Appeal, counsel for both parties filed and exchanged briefs of argument.

Appellant’s brief filed on 27/3/2000 was by order of this court made on 3/5/2000 deemed properly filed and served within time.

The respondent’s brief filed on 23/11/2000 contained among other things, notice of preliminary objection. By reason of this, the appellant filed a reply brief on 6/9/2001 out of time with leave of this court granted on 13/11/2001.

At the hearing of the appeal, learned counsel for the appellant D. D Ohietan, Esq. adopted his brief of argument and urged the court to allow the appeal.

Leo Ebi, Esq., (holding the brief of C. Madumere, Esq) for the respondent also adopted his brief of argument together with the notice of preliminary objection contained in the brief. He urged the court to dismiss the appeal.

From the 7 grounds of appeal, the appellant has distilled 6 issues for determination, thus:-

“(a) Whether having regard to Decree 60 of 1991 and Decree 107 of 1993, the Bauchi State High Court had jurisdiction to entertain the plaintiff/respondent’s case it being an insurance claim.

(b) Whether what was insured was the interest of the respondent or the mortgage interest of Union Bank of Nigeria Plc?.

(c) Whether the learned trial Judge was not in error in failing to hold that the respondent’s property was under-insured with the result that he failed to apply the average clause in the insurance contract in issue in the case?.

(d) Whether the learned trial Judge was not in error in finding that the respondent paid premium in advance in respect of policy No. 734B/R41197C when there were two policy numbers on the receipt pursuant to which he so held and no attempt was made to explain why a different policy number had been written on the receipt and cancelled.

(e) Whether the respondent had proved the damages claimed by him?.

(f) Whether the learned trial Judge applied the law relating to contracts of indemnity in awarding damages in this case?.

He had framed no issue from ground 1 which he decided to abandon.

On the part of the respondent, learned counsel Mr. Madumere raised a preliminary objection to ground 2 of the grounds of appeal out of which the appellant’s issue No. 1 was distilled and urged the court to uphold same. Should this court refuse to uphold it, he adopts appellant’s issue No.1 and also appellant’s other 5 issues as set out above.

It seems pertinent to me to identify briefly some salient facts of the case which the court below determined.

It is not in controversy that the suit at the High Court took its root from a loan agreement between Union Bank of Nigeria Plc. and a Company known as Manng Nig. Ltd. The respondent its Chairman/Managing Director had acted as the guarantor of Manng Nig. Ltd. for the loan. He mortgaged his property at No.2 Gawo Road Bauchi as security for the loan facility which the Union Bank granted the company. In addition, by clause 10 of the Deed of Mortgage, exhibit PL 10 the Mortgagor who is the respondent herein covenanted to insure “all messages building and property now or for the time being comprised in or subject to the security ….. against loss or damage by fire, tornado”. etc.

The appellant, introduced by Union Bank became the insurers of the mortgaged property at No.2 Gawo Road, GRA Bauchi covered by C of O No. BA/2211 and the interest of Union Bank was noted on the insurance policy (Exh. PL 1). The property was insured among other things against hurricane, tornado, cyclone or windstorm, flood etc.

It is not in dispute that there was a heavy down pour, tornado and flood in Bauchi on 15/6/94 which caused damage at No.2 Gawo Road and other premises in the neighbourhood. By reason thereof the respondent submitted an estimate of the damage to the insurers, that is, appellant. This was after its agent in Bauchi inspected the damaged premises the next day. After some communication and correspondences between the parties, parties disagreed on the extent of the property covered by the insurance and the amount payable for the damage.

The claim in the action filed in the court below by the respondent was to recover the sum of N250,070.00 which he expended in repairing the damage caused at No.2 Gawo Street aforesaid. This, according to him involved the main building, the boys’ quarters and the wall fence around the premises. This is against the offer of N43,272.79 made by the appellant, which according to it was for damages to the main building and the fence. It excluded the Boys’ quarters which it claimed did not form part of the insured property.

Parties exchanged pleadings and led evidence at the trial. Three witnesses testified for the plaintiff and two for the defence.

It is against the foregoing background the court below gave judgment in favour of the plaintiff/respondent against the defendant/appellant in the sum of N250,000.00 special damages being the cost of repairs to the damage caused to the insured property. And, against this, the defendant/appellant hereinafter called the appellant, appealed to this court.

The appellant having framed no issue in respect of ground 1 of the ground of appeal, had abandoned it and so stated in his brief of argument. Ground 1 is therefore struck out.

I will at this stage take the preliminary objection raised by the respondent in his brief of argument, notice of which his counsel gave in the said brief, the same was adopted by his counsel at the hearing of the appeal. This relates to ground 2 of the grounds of appeal which reads:

“The learned trial Judge of the Bauchi State High Court erred in law when he entertained and gave judgment in an insurance claim when he has no jurisdiction to entertain such claim.”

The ground of this objection is that the trial court had delivered a ruling on 22/7/98 wherein the appellant’s objection to the jurisdiction of the High Court to hear the suit was overruled.

Notwithstanding that his counsel asked for an adjournment to appeal, the appellant did not appeal against it.

Learned counsel for the respondent in his brief of argument submitted that the ruling being on an interlocutory matter, the appellant ought to have appealed in accordance with section 25(1) Band (2)(a) of Court of Appeal Act and section 222(1) of the 1979 Constitution of the Federal Republic of Nigeria. Having failed to do so, the appellant can only include an appeal in respect thereof in an appeal against the final judgment with leave of the court. Counsel then concluded that the appellant having failed to obtain leave to appeal against that ruling before including it in this appeal against the final judgment, the ground is incompetent. Counsel relied on Ogigie v. Obiyan (1997) 10 SCNJ 1 at p. 15, (1987) 10 NWLR (Pt.524) 179.

It was also pointed out on behalf of the respondent that the appellant was out of time for appealing against that ruling as provided by section 25 of the Court of Appeal Act and section 221(1) of the 1979 Constitution at the time this appeal against the final judgment was filed on 1/4/99, over 8 months after the ruling was delivered.

The appellant being in transgression of these provisions, the ground of appeal is to be struck out, being incompetent and its related issue – issue No.2 and the arguments in relation thereto should be discountenanced. He cited authorities in support – Oshatoba v. Olujitan (2000) 5 NWLR (Pt.655) 159 at 172-173; Newswatch Communications Ltd. v. Atta (2000) 2 NWLR (Pt. 646) 592 at 604; Ogigie v. Obiyan (supra) and Eze v. Ejelonu (1999) 6 NWLR (Pt. 605) 134 at 142.

In his reply brief, the appellant reacted to this preliminary objection and the submission of learned counsel for the respondent.

It was argued by learned counsel for the appellant that it did not follow since the interlocutory ruling in the court below was not appealed against, that the appellant was estopped from attacking the final judgment on that ground.

He then submitted that the law on the issue of jurisdiction is that it can be raised as many times as possible and at any stage of the proceedings even on appeal. The case of Petro Jessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (1992) 5 NWLR (Pt. 244) 675 at 678-679 SC cited, in support. Also ACB Ltd. v. Awogboro (1996) 3 NWLR (Pt. 437) 383 at 387, 393-394.

Learned counsel for the appellant contended that the fact that an appellant failed to appeal against a ruling does not extinguish the right of appeal against the final judgment and attacking the final judgment on that ground.

A second reason was proffered for the appellant in justification of ground 2 of the ground of appeal raising the issue of the jurisdiction of the court below. It was submitted for the appellant that the appellant’s choice not to appeal against the interlocutory 1 ding which had determined the issue of jurisdiction, declaring that the court below had jurisdiction, but to marry it with the appeal against the final judgment was in line with the injunction of the Supreme Court in ACB Ltd. v. Awogboro (supra). The injunction referred to is contained in some comment in the judgment of Iguh, JSC. It is to the effect that a party does not necessarily need to appeal against each and every ruling particularly where the interlocutory appeal would have the effect of staying further hearing of the substantive suit.

The learned Justice of the Supreme Court advised that in some cases, in the overall interest of Justice an aggrieved party might, temporarily ignore a ruling, and, later, if need be, incorporate his complaint in his notice and grounds of appeal filed against the final judgment in the substantive suit.

This view was expressed in that suit which was stayed for 10 years while pursuing an appeal against an interlocutory injunction.

It is clear to me that ground 2 against which the respondent now raised his objection in his notice of preliminary objection in the respondent’s brief of argument, is aimed at revisiting the issue of jurisdiction which the court below had determined on 22/7/98 as an interlocutory matter when it was raised on 3/6/98 by the appellant’s counsel in the course of the proceedings in the court below. The court below delivered a considered ruling. It over-ruled the appellant’s objection to jurisdiction. It held that the court was seised with jurisdiction to entertain the suit.

It is worthy of note that after the ruling, the substantive suit continued in its course. After two adjournments, learned counsel for the parties delivered their final address. This was on 20/11/98.

Although the appellant had sought an adjournment after the ruling on 22/7/98 to appeal against it, he did not file any appeal. The issue of jurisdiction as the records show, was never raised again and it was not an issue determined in the final judgment subsequently delivered on 31/3/99 by the learned trial Judge.

The real issue, in the light of the foregoing with respect to ground 2 of the grounds of appeal is whether the appellant could raise the issue of jurisdiction in his appeal against the final judgment without leave of the court. The appellant’s argument seems to be, simply put, that the issue of jurisdiction can be raised in the circumstances of this case without leave. On the other hand, for the respondent, it is argued that leave must need be sought and obtained. I am of the view, that by virtue of the provisions of section 25(1) and (2) of the Court of Appeal Act and section 221(1) of the 1979 Constitution applicable to this matter and various binding legal authorities, leave of the court must be sought and obtained. Failure to obtain leave where necessary renders a ground of appeal and the issue distilled there from incompetent and must be struck out. Arowolo v. Adimula (1991) 8NWLR (Pt. 212) 753; Ajibade v. Pedro (1992) 5 NWLR (Pt. 241) 257 at 262; Oshatoba v. Olujitan (2000) 5 NWLR (Pt. 655) 159 SC.

Section 25(1) and 2(a) of the Court of Appeal Act provides:

“25(1) Where a person desires to appeal to the Court of Appeal he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of court within the period prescribed by the provision of subsection (2) of this section that is applicable to the case.

2. The periods for giving of notice of appeal or notice of application for leave to appeal are:-

(a) 1n an appeal in a civil cause or matter, fourteen days where the appeal is against an interlocutory decision and three months where the appeal is against a final decision”

Also from sections 220(1 )(a) and 221 (1) of the 1979 Constitution of the Federal Republic of Nigeria applicable to this case, it is clear that an appeal shall lie from the interlocutory decision of the High Court to the Court of Appeal only with leave of the High Court or the Court of Appeal.

“220-(1)An appeal shall lie from decisions of a High Court to the Federal Court of Appeal as of right in the following cases –

(a) Final decisions in any civil or criminal proceedings before the High Court sitting at first instance.”

“221-(1) Subject to the provisions of section 220 of this Constitution, an appeal shall lie from decisions of a High Court to the Federal Court of Appeal with the leave of that High Court or the Federal Court of Appeal.

The effect of these provisions is that an appeal to the Court of Appeal against an interlocutory decision of the High Court must be filed within 14 days from the date of the decision and with leave of the High Court or the Court of Appeal. A party to a suit wishing to appeal against an interlocutory judgment or ruling of the High Court has two options open to him. He may immediately after the ruling appeal to the Court of Appeal within 14 days in accordance with section 25(1) and 2(a) of the Court of Appeal Act and with leave of the High Court or the Court of Appeal pursuant to Sections 220 and 221 of the 1979 Constitution of the Federal Republic of Nigeria applicable at the time of the proceedings in this matter (sections 241 and 242 of the 1999 Constitution). In the alternative, he may for some good reason, or good cause defer or fail to file, his appeal immediately after the ruling and await the outcome of the final judgment in the suit. Should he then after the final judgment find it expedient to appeal against the judgment and also against the interlocutory ruling or decision, he may proceed to marry both appeals, subject however, to his also obtaining leave to appeal against the interlocutory decision. If he is out of time with regard to the interlocutory decision, he shall also obtain leave to appeal out of time. If he is already out of the time of the 14 days enacted by section 25 (supra), he must obtain leave to appeal out of time.

In the present matter, the appellant seems to be adopting the second option. For his appeal in respect of the interlocutory decision to be competent, he ought to have obtained leave to appeal and to appeal out of time as required by law as set out above. He has however not done so and this renders his appeal incompetent. See Ogigie v. Obiyan (1997) 10 NWLR (Pt. 524) 179 at 195, also reported in (1997) 10 SCNJ 1 at 15.

In that case, the applicable principles have been clearly set out by the Supreme Court of Nigeria. Therein, among the issues for determination are some similar to those in the preliminary objection herein. Among other issues, the apex court considered the procedures to follow where the issue determined in an interlocutory decision by the court below was not considered in the final judgment appealed against and the appellant sought as in ground 2 herein, to appeal on it in his appeal against the final judgment.

The learned Chief Justice of Nigeria M. L. Uwais in his leading judgment had this to say:-

“Now, no reference was made throughout the judgment of the trial Judge to the issue of applicability of Land Use Act or Bendel State Legal Notice No. 22 of 1978.

Such reference was made only in the ruling delivered on the 31st May, 1984. Can the appellants, therefore, raise such interlocutory issue in the appeal against the judgment? I respectfully think not. Although a party can include an appeal against a ruling in an interlocutory application when he comes to appeal against the final judgment, and this is to be encouraged in order to avoid unnecessary delay by appealing separately, there is a procedure to be followed in order to meet the unavoidable technicalities involved. By section 25 subsection (2)(a) of the Court of Appeal Act, 1976, the period prescribed for appealing against an interlocutory decision is 14 days; while the time prescribed for appealing against a final decision is three months. In order to marry two appeals together one has to obtain leave to appeal out of time against the interlocutory ruling. Clearly, this has not been done in this case. Therefore, the appeal against the ruling of the learned trial Judge, which contains the point about the applicability of the Land Use Act and Legal Notice No. 22 of 1978 as to whether the dispute is situate in an urban area or rural area so as to determine the trial Judge’s jurisdiction, is incompetent.”

One thing is clear to me in this matter – the learned trial Judge had clearly and conclusively determined the issue of jurisdiction raised by the appellant as an interlocutory matter before the conclusion of the hearing of the substantive suit and final judgment.

The issue never arose again and did not form any part of the final judgment.

A complaint against the judgment can only be made on appeal upon issues properly canvassed and adjudicated upon at the trial in the lower court and that is what the parties and the court remain bound to. See First Bank Plc v. Abba (1998) 10 NWLR (Pt. 569) 227 at 236 CA; Temco Eng. Co. Ltd. v. Savannah Bank Ltd. (1995) 5 NWLR (Pt. 397) 607 CA; Bankole v. Pelu (1991) 8 NWLR (Pt.211) 523 at 547; Djukpan v. Orovuyovbe (1967) 1 All NLR 134. No matter how diplomatically or cleverly couched, there is no escaping the conclusion that Ground 2 of the ground of appeal is not a complaint against the judgment in the substantive suit, for the issue of jurisdiction was never canvassed or adjudicated on in the suit.

Rather, the issue only came up and was determined as an interlocutory matter. I have no doubt that it is against that interlocutory decision the appellant now complains. For this, leave must be sought and obtained.

I would with respect disagree with learned counsel for the appellant’s submission. He stated in his reply brief that what was appealed against was the final decision of the court below. That submission could pass for the other grounds of appeal, other than ground 2. The issue in ground 2 did not arise from the final judgment. If the appellant wants it taken that he is raising on appeal, for the first time the issue of jurisdiction i.e. issue not canvassed at the trial court, the law is that he has to apply for and obtain leave to do so too. See A.-G., Oyo State v. Fairlakes Hotels Ltd. (1988) 5 NWLR (Pt. 92) 1; Akpene v. Barclays Bank (1977) 1 SC 47. He has not obtained leave.

Taking all the foregoing into account, there is no way the appellant can escape the repercussion from his failure to obtain the leave of the court as required by law to be entitled to canvass the issue in ground 2 in this court. It seems to me that his reply brief has not successfully addressed the legal issues raised by the respondent and the legal authorities applicable.

Counsel has correctly quoted the law that the issue of jurisdiction can be raised at any time even on appeal – citing Petro Jessica Enterprises Ltd. v. Leventis Technical Co. Ltd. (supra). He has also correctly asserted that the appellant had a right not to appeal against the interlocutory ruling at the stage it was given and do so with the appeal against the final judgment. He has however not correctly applied the principles of law regarding the need for obtaining leave. The dictum of Iguh, JSC in African Continental Bank Ltd. v. Awogboro (supra) which he relied on is not applicable. That dictum, could pass for a highly respectful obiter observation, and the learned Justice of the Supreme Court himself, termed it an “admonition”. The statement was not the ratio decidendum determining the issue arising for determination in that case. The appeal against the interlocutory decision in that case took ten whole years to determine. That was what gave rise to that “admonition”. The Supreme Court felt that the appellant’s counsel therein failed to realise from the nature of his case as plaintiff, and the decision appealed against, that it would have been in the overall interest of Justice and his client to postpone his interlocutory appeal till the substantive suit was determined.

Iguh, JSC therefore in his contribution to the leading judgment said at page 393-394:

“There is however one single admonition I desire to give. It need not be each and every ruling of a trial court that a party necessarily needs to appeal against, particularly where such an interlocutory appeal shall have the effect of staying further hearing of the substantive suit. It may, in some cases, be more in the overall interest of Justice and the aggrieved party if certain rulings of a trial court, considered erroneous, are ignored, all-be-it, temporarily, where this would cause no harm or lead to miscarriage of Justice if the continuation of hearing of the substantive case is pursued with a view to its expeditious determination. Thereafter, which ever party that is aggrieved by such rulings may, if need be, incorporate his complaint in his notice and grounds of appeal filed against the final judgment of court in the substantive suit. I find it necessary to make this observation as the hearing of the present suit which, in my view, could not have taken more than one, or at the very most, two days to complete, was stayed for an incredible period of 10 years in pursuit of an appeal against the trial court’s ruling on a mere application for an interlocutory injunction. Justice delayed, they say, is Justice denied and it is my advice that parties ought in future to give a more serious consideration to whether or not to ignore their grievance against a mere interlocutory ruling temporarily and proceed with the continuation of hearing of the substantive suit and canvass the correctness of the alleged offending ruling at the end of trial if need be.”

The issue whether leave ought to be obtained where the appellant chooses to marry his interlocutory appeal with that against the final judgment was not determined in the ACB Ltd. case (supra).

All the foregoing taken into account, the objection of the respondent to ground 2 of the grounds of appeal is well grounded.

It succeeds. Ground 2 is incompetent and is hereby struck out, together with issue No. 1 distilled there from. In the light of this decision, I consider it unnecessary to address the argument canvassed on whether the court below had jurisdiction or not. We are now left with issues 2, 3, 4, 5 and 6.

Issue No.2 is distilled from ground 3. The submission of the appellant is that it was the interest of Union Bank of Nigeria Plc which was insured, not that of the plaintiff/respondent. It is not denied that the respondent has an insurable interest. It is argued that it is not that interest that was insured. To establish this, counsel for the appellant reviewed the pleadings particularly paragraph 3(a) and (b) of the amended statement of claim and the evidence of PW3 and DW3. He cited the definition of insurable interest by Lawrence, J., in the case of “Lucena v. Craufurd (1806) 2 Bos & PNR 269 and First Bank of Nigeria Plc. v. Abba (1998) 10 NWLR (Pt. 569) 227 at 235. Learned counsel for the appellant then concluded that from that definition, “it cannot be disputed that both the respondent and Union Bank Plc have insurable interest over the property insured but,” it has been demonstrated from the pleadings and evidence in court that what was insured was the interest of the bank. It was submitted that for the respondent to be competent to enforce the policy, he had to show that he had liquidated the debt with a consequent abatement of the interest of the bank mortgagee.

He cited paragraph 202 of Halsbury’s Laws of England 4th Ed., Vol. 25 at p. 121. Counsel added that it is clear that the Mortgagee Union Bank intended that the insurance should cover only its interest. He referred this court to paragraph 3(a) of the statement of claim.

He concluded that the proper party to maintain the action against the appellant was the Mortgagee Union Bank rather as sole or coplaintiff and that in its absence, the action was not properly constituted and must fail.

In response to this submission, learned counsel for the respondent drew the attention of this court to the pleadings of parties and paragraphs 3(a)(b) and (c) of the plaintiff/respondent’s statement of claim, averring:

“That Manng Nigeria Ltd. obtained overdraft from Union Bank and as collateral for the facility, the plaintiff/appellant mortgaged his Bauchi State C of 0 No. covering his building at No.2 Gawo Road with the said Bank. He pleaded the deed of mortgage, that the bank acting as agent of the plaintiff insured the property – That the plaintiff shall contend at the trial that the effect of the …. policy is that at the happening of the listed perils, the defendant would either reinstate the plaintiff or effect repairs on the damaged premises.”

Our attention was also drawn to the fact that the defendant/appellant denied these averments in paragraph 3 (supra) in paragraphs 3, 4 and 5A of its statement of defence.

Learned counsel for the respondent posited: That from the foregoing, it is clear that whilst the plaintiff/respondent pleaded the existence of a valid contract of insurance, the defendant/appellant denied it, adding that even if one existed that the respondent could not enforce it because he had no insurable interest in the property insured, that parties had joined issues and the question before the court of trial was – (i) Whether there was an insurance contract between the parties and, (ii) Whether the respondent had an insurable interest in the property insured.

The court below answered, in its judgment first, that there existed a valid and enforceable contract of insurance between the parties and secondly that the plaintiff had an insurable interest in the property. Counsel then submitted that the trial court duly determined the issues before it, it was not called upon to determine whether it was the interest of Union Bank that was insured and a trial court determines only issues which flow from the pleadings and evidence before it. Lipede v. Sonekan (1995) 1 SCNJ 184 at 197-198, (1995) 1 NWLR (Pt. 374) 668 and Union Bank v. Ozigi (1994) 3 SCNJ 42 at 57, (1994) 3 NWLR (Pt. 333) 385; Odekilekun v. Hassan (1997) 12 SCNJ 114, (1997) 12 NWLR (Pt. 531) 56 are cited.

Counsel also submitted that the contents of clause 10 in the Deed of Legal Mortgage Exh. PL 10, memo 4 of the Insurance Policy Exh. PL 1 and the Proposal Form Exh, PL 12, show that the respondent was paying the premium, Union Bank was only entitled to payment, in case of damage, only to the extent of their interest. The controversy under issue 2 therefore is whether the insurable interest of the respondent in the property was insured or the insurable interest of Union Bank ….. Plc that was insured. The appellant argues that what was actually insured was the insurable interest of Union Bank, not that of the respondent. Therefore, it is the bank who ought to pursue the claim arising from the damage by tornado to the mortgaged property, not the respondent and so that the action was not properly constituted.

I have set out in some detail the argument proffered by learned counsel for the parties. Let me also set out paragraphs 3 and 4 of the statement of claim and paragraphs 3, 4, 5 and 5A of the statement of defence. I consider them helpful. Statement of Claim:

Paragraph 3(a) Sometimes in 1992 MANNG NIGERIA LIMITED obtained overdraft facility from UNION BANK OF (NIG.) PLC. Yandoka Road Bye-pass, Branch, Bauchi, Bauchi State as collateral for the credit facility the plaintiff mortgaged his Bauchi State Certificate of Occupancy No. BA/2211 covering his building premises at No.2 Gawo Road, GRA. Bauchi with the said Bank. In fulfilment of the conditions of the overdraft the Bank perfected the Legal Mortgage on the Certificate of Occupancy. The said legal mortgage form dated 21/5/92 is hereby pleaded. The initial consideration was N100,000.00 then later increased to N500,000.000and N750,000.00in line with the increased valued of the property.

(b) In line with other conditions of the credit facility the Bank acting as the agent of the plaintiff insured the property covered by Certificate of Occupancy No. BA/2211 with the defendants. The insurance covers the plaintiff’s premises at No.2 Gawo Road, Bauchi. The said Bauchi State Certificate of Occupancy No. BA/2211 is hereby pleaded. The proposal form filled in by the Bank is also hereby pleaded. The defendant is hereby given notice to produce the original.

(b) The building premises at No.2 Gawo Road insured for the sum of N100,000.00with the defendant against AIRCRAFT: EXPLOSION; EARTHQUAKE; RIOT & TORNADO; FLOOD BURST PIPE; IMPACT and BUSH FIRE. The insured policy number is 734B/K411970 and a copy of the policy dated 15/5/92 was sent to the plaintiff. The said copy of the policy is hereby pleaded. The plaintiff shall contend at the trial that the effect of the above pleaded policy is that at the happening of the listed perils, the defendant would either reinstate the plaintiff or effect repairs on the damaged premises. The provisional cover note No. 003933 issued to the plaintiff prior to the insurance of the said policy is also pleaded.

Para.4(1) Subsequently the value of the insured building premises was jerked up to N500,000.00 with effect from 17/3/93. A copy of defendant endorsement No. E/I/KN showing the above increase and dated 15/3/93 and given to me is hereby pleaded. The value of the insured building premises was later jerked up to N750,000.00.

This increase was based on the advice from my Bankers, UNION BANK OF (NIG) PLC and whose interest the defendant has noted in the policy. This increase is evidenced by endorsement No. E/2/KN dated 23/3/94 sent to the plaintiff by the defendant. The plaintiff shall contend that the value of the premises in issue N500,000.00 in 1994 as adviced by my bankers and accepted by the defendant. The plaintiff shall also contend at the trial that as at June 1994 the policy of insurance was valid as premium had earlier been paid through his bankers – UNION BANK OF (NIG.) PLC. The receipt evidencing payment of premium for 1994 dated 01/03/94 with No. 247468 is hereby pleaded. The plaintiff denies that the premises in issue was under insured.

Statement of Defence. Para.3 The defendant denies the contents of paragraphs 1, 3, 4, 5, 6, 7,8,9 and 10 of the statement of claim and puts the plaintiff to strict proof of the allegations contained therein.

Para.4 In further answer to paragraph 3 of the statement of claim, the defendant avers that if the plaintiff did insure a premises situate at No.2 Gawo Road, G.R.A., Bauchi (which fact is not admitted), the policy is invalid and unenforceable as the plaintiff has no insurable interest in the property. The defendant further states that the plaintiff was in default of payment of premium by 15th June, 1994 and as such the policy was not in force.

Para.5 In answer to paragraph 4 of the statement of claim, the defendant avers that the value of the premises in issue did not and could not have appreciated from N100,000.00in 1992 to N750,000.00in 1994 and denies that an endorsement No. E/2/KN dated 28/3/94 or any other endorsement was sent to the plaintiff by the defendant increasing the sum insured to N750,000.00 or any other sum.

Para.5a Further or in the alternative to paragraph 5 above, the defendant avers that the value of the property at No.2, Gawo Road Bauchi, inclusive of the boys quarters is at least N1 million. Exclusive of the boys’ quarters, the value of the property is at least N850,000.00. Accordingly, if the plaintiff insured the property at No. 2 Gawo Road Bauchi for N750,000.00(and this is not admitted) the property was under insured and, in accordance with the insurance policy and the custom of insurers, the plaintiff is his own insurer for the uninsured balance so that the average condition would apply to any loss claim under the policy.”

I have considered all the foregoing as well as the oral and documentary evidence before the court below, and the judgment of the learned trial Judge. The following matters have become quite clear:-

The appellant at page 12 of his brief, paragraph 4 admits that the respondent has an insurable interest in the mortgaged property.

The effect of paragraph 3 of the statement of claim and paragraphs 3-5A of the statement of defence, (supra) therefore is that the parties joined issues upon whether there was a contract insurance between the appellant and the respondent and not whether the respondent had an insurable interest. The court below answered both questions in the affirmative adducing his reasons. Now that the appellant accepts that the respondent has an insurable interest, what is left is whether there is a contract of insurance between the appellant and the respondent.

Learned counsel for both parties have made copious submissions on the issue whether it was the interest of Union Bank that was insured or that of the respondent. It is my view that although issues were not overtly joined thereon it came up at the hearing. The answer to that question is subsumed in the finding made by the court below.

The learned trial Judge had examined the pleadings of the parties, and reviewed the evidence of the witnesses, (see pages 72-76). He also appraised these, together with the address of counsel for the parties. He adopted the 2 issues identified by the defence counsel and he determined those issues (see pages 76-79). I hold the view that in issue No.1 at the trial, the question being raised under Issue 2 in this appeal is subsumed. It was, “whether the plaintiff has proved that he has a valid and enforceable contract of insurance with the defendant.” The court below resolved the issue in favour of the respondent.

The learned trial Judge said:-

“On this issue, having regard to the plaintiff’s statement of claim especially para. 3a and the testimony of PW1 and PW3 and the submission of the learned plaintiff’s counsel and having studied Exh. PL1 and the averment in para. 7 of the plaintiff’s statement of claim wherein the defendant has offered to pay the plaintiff some amount which the plaintiff rejected all these are clear proof that there exist a valid and enforceable contract of insurance between the plaintiff and the defendant and I so hold. Similarly, I am not in any doubt from the material placed before me that the plaintiff has insurable interest in the property and that it is that insurable interest that is insured under the policy. To say that it is not the insurable interest of the plaintiff which is insured is to overstretch the definition of an insurable interest. It is my opinion that the plaintiff has insurable interest and it is that insurable interest that is insured. The Union Bank interest in the property in policy it exist during the pending of the loan. But the insurable interest of the plaintiff exist before and after the mortgage transaction. On the issue of payment of premium exh. PL 9 is very clear. The receipt for payment of premium showed 1/3/94 and the loss occurred on 15/6/94. That is three months after the payment of the premium. I say without hesitation that the premium was paid well in advance of the loss. On the whole I resolve this issue in favour of the plaintiff.”

I totally agree with the above decision of the learned trial Judge. I see no reason, governed by the law, proffered by the appellant, to estop the respondent from claiming for damage done to the property mortgaged with Union Bank by virtue of the policy of insurance issued by the appellant. Both parties herein admit that the respondent and Union Bank have insurable interest. It is not, as the appellant argued however that it was only the insurable interest of Union Bank which was insured and not that of the respondent. How can that be when the respondent retains possession of the property and is obliged to maintain it by virtue of the provisions in the deed of mortgage?

The right of the respondent takes its bearing from the Deed of Legal Mortgage Exh. PL 10, the Proposal Form Exh. PL 12 and the Policy ofInsurance Exh. PL 11.

The respondent who was the mortgagor and guarantor of Manng Nig. Ltd. has his obligations and conditions to be fulfilled spelt out in the Mortgage Deed Exh. PL 10. The terms which are particularly relevant herein, show that the respondent – mortgagor was, by the deed of mortgage guaranteeing the banking facility granted by Union Bank of his company, Manng Nig. Ltd. By way of additional security for the loan, the respondent – mortgagor was required by the bank to insure, during the subsistence of the loan and continuance of this security and to keep insured:

“…all messuages buildings and property now or for the time being comprised in or subject to the security in such state of repair and so insured against loss or damage by fire, tornado… to the full value thereof in some insurance office of repute to be approved in writing…by the Bank by a policy of insurance containing a clause showing the interest of the Bank as Mortgagees and will in all cases duly and punctually pay all premium and other moneys necessary for effecting and keeping up such insurance etc.” (Italics mine).

It is to be noted therefore that the respondent/mortgagor also had the responsibility to repair and keep in substantial repairs the mortgaged property and to issue and keep the same insured, and to pay the necessary premium for the insurance. The pleadings and evidence on record show that it was in pursuance of these covenants that the bank, on behalf of and in the name of the respondent/mortgagor took out the insurance policy with the appellants. See the evidence of PW 1 and also PW3 who is a staff of Union Bank … Plc. The interest of Union Bank was noted on the policy, exh. PL 1. In that same exhibit is memo 4 titled “MORTGAGE CLAUSE.” It spells out what Union Bank is entitled to in realizing its interest under the insurance policy should there be loss thereunder thus:-

“Loss, if any shall be payable to UNION BANK OF (NIG.) PLC. as mortgagees or Assignees of interest to the extent of their interest.”

In effect, the mortgage deed and the policy of insurance must be considered together to the extent that the insurance transaction took its root from the mortgage transaction. Yet no liability accrues against Union Bank, in favour of the appellant from the policy. For the bank was acting on behalf of the respondent/mortgagor and remitted the premium to the appellant-insurers from the account of Manng Ltd. on behalf of the mortgagor who covenanted to insure the mortgaged property.

That covenant to insure the mortgaged property entered into by the respondent/mortgagor with Union Bank in the mortgage deed was indeed aimed at providing further security for the loan to Manng Nig. Ltd., should that company default in its repayment of the loan.

No default has been shown to have arisen. There is nothing in these transactions intended to deprive the respondent/mortgagor of his insurable interest in the mortgaged property which he actually insured and paid and remained liable for the payment of the premium. The appellant in its brief had reasoned that but for granting a loan by Union Bank to Manng Nig. Ltd., secured by the property of the plaintiff/respondent, the insurance policy would never have been taken either by plaintiff/respondent or Union Bank. That may well be so, but I do not see how that derogates from the interest and right of the respondent who is the insured under the policy of insurance Exh. PL 1 or derogates from his entitlement thereunder. Union Bank on the other hand is not deprived of its rights or claim which it may wish to pursue to the extent of the liability of Manng Nig. Ltd. should that company default in repayment of the loan. No default has been proved and Union Bank has not come up with any claim against Manng Nig. Ltd.

If anything, the loan transaction was still subsisting at the time of this suit. The case of First Bank v. Abba (supra) relied on by the appellant does not support the substance of its case, under Issue No. 2. The Court of Appeal in that case simply decided that where a mortgage insurance policy taken out to further secure a loan made by the appellant – First Bank of Nigeria Plc. to the respondent was endorsed with a statement that the bank would remit to the insurance company the premium out of the account of the respondent, it did not operate as a legally binding obligation on the part of the bank after the loan was liquidated and further premium was not paid by the bank on behalf of the mortgagor. Therefore, the plaintiff/respondent could not hold the bank liable, when after he had liquidated his loan, the bank did not further remit the premium, when the mortgaged property was destroyed. He could also not recover from the insurance company. The facts of the case is not “uncannily similar to the facts of this case” as submitted for the appellant. The dictum relied on by learned counsel for the appellant does not in any way determine the issue arising herein, or that what was insured was only the insurable interest of the bank or that only the bank could claim during the subsistence of the loan or the mortgage. The issue never arose in the First Bank case (supra).

I agree with the learned trial Judge that it was the insurable interest of both Union Bank and the respondent that the respondent insured. The contract of insurance is between the appellant and the respondent. I hold the view that the respondent can enforce it without Union Bank. The respondent is entitled to bring this action as one who covenanted with Union Bank to keep the mortgaged property in repair during the subsistence of the loan, and who insured the property as required by Union Bank. Union Bank itself did not insure the property and makes no claim. Its staff testified and it was aware of this suit. This action is therefore not vitiated by the absence of Union Bank as a party. The issue is determined in favour of the respondent, against the appellant. Issue No.2 and its corresponding ground of appeal – ground 3 therefore fail.

Issue No.3 questions the learned trial Judge for not holding that the respondent’s property was under-insured.

The issue, distilled from ground 4 of the grounds of appeal arose from the contention of the appellant in the court below when he averred in paragraph 5A in its amended statement of defence thus “Further or in the alternative to paragraph 5 above, the defendant avers that the value of the property at No.2, Gawo Road, Bauchi, inclusive of the boys quarters is at least N1 million. Exclusive of the boys’ quarters, the value of the property is at least N850,000.00. Accordingly, if the plaintiff insured the property at No.2 Gawo Road, Bauchi for N750,000.00 (and this is not admitted) the property was under insured and, in accordance with the insurance policy and the custom of insurers, the plaintiff is his own insurer for the uninsured balance so that the average condition would apply to any loss claim under the policy.”

Learned counsel for the appellant referred to the evidence of DW 1, the loss adjuster who stated that in his view the property was under insured and virtually repeated the averment in the defendant’s pleadings in paragraph 5A (supra).

The plaintiff/respondent’s averment in connection with this is paragraph 4 of his further amended statement of claim ran thus:

The plaintiff shall contend that the value of the premises in issue is N750,000.00 in 1994 as advised by my bankers and accepted by the defendant”.

Our attention was drawn to paragraph 3(a) of the “further amended statement of claim,” which the appellant responded to in paragraph 4 of its statement of defence (supra). Paragraph 3(a) is fully set out under issue NO.2. But the relevant part of the averment to be noted is to the effect that, “the initial consideration was N100,000.00 then increased to N500,000.oo and N750,000 in line with the increased value of the property.”

Learned counsel for the appellant submitted that inspite of the pleadings and the evidence of PW3 on the issue the learned trial Judge made no finding in respect thereof and had failed in his duty to hear, determine and resolve all issues properly raised before it. Okonji v. Njokanma (1991) 7 NWLR (Pt. 202) 131 a 150-152 and 154 cited. Also, Leko v. Soda (1995) 2 NWLR (Pt. 378) 432 at 444 para. A-B.

Counsel called on this court to examine the case with the pleadings and evidence, to make proper findings and apply the law. He argued that if the learned trial Judge had considered the pleadings and evidence, he would have applied average clause in the policy and not awarded the respondent the whole sum claimed.

In his own brief of argument, learned counsel for the respondent set out the averments in the pleadings of the parties and the evidence of witnesses. He then submitted that from the facts pleaded and evidence, the respondent indeed proved that the sum insured i.e. N750,000 was the value of the property as advised by Union Bank of Nigeria Plc and accepted by the appellant as evidenced by the endorsement on Exh. PL 1A and by PL3 – the Insurance Policies issued by it. He further submitted that the respondent gave evidence in proof of his pleadings in paragraph 4 of the statement of claim, but, no evidence was led by the appellant in proof of paragraph 5 of its statement of defence where he introduced the issue of over insurance which the plaintiff had denied in his paragraph 4, and this would be deemed abandoned- Egbunike v.ACB Ltd. (1995) 2 SCNJ 58 at 74-75, (1995) 2 NWLR (Pt. 375) 34 cited. Counsel urged this court to hold that the respondent discharged the onus on him as to the value of the property insured.

The burden of proving under-insurance was on the appellant section 136 – 137 of the Evidence Act quoted, also cited – Ukatta v. Ndinaeze (1997) 4 SCNJ 117 at 129-130, (1997) 4 NWLR (Pt. 499) 251; Udih v. Idemudiah (1998) 3 SCNJ 36 at 44-45, (1998) 4 NWLR (Pt. 545) 231; Fadallah v. Arewa iles Ltd. (1997)7 SCNJ 202 at 210, (1997) 8 NWLR (P. 518) 546. Counsel examined the evidence led by the appellant. It was only DW1, the loss-adjuster invited by the appellant who proffered evidence on this but, counsel pointed out the learned trial Judge had concluded that DW1 cannot be said to be an unbiased witness and that his evidence does not carry any weight. The defence of under insurance had thus collapsed. Iseru v. Catholic Bishop (1997) 4 SCNJ 102 at 115, (1997) 3 NWLR (Pt. 495) 157 cited. Counsel also adopted the case of Leko v. Soda (supra) cited by appellant’s counsel on the duty of a trial Judge to make definite findings. However, he argued that even if the court made no definite finding on the claim of under-insurance, the error is not fatal, in view of the facts he had identified in his brief of argument, and particularly having regard to the lower court’s evaluation and pronouncement that no weight can be ascribed to the evidence of DW1 on the issue. He urged this court to so hold – citing Ukatta v. Ndinaeze (supra); Agwunedu v. Onwumere (1994) 1 SCNJ 106; IBWA Ltd. v. Farex Int. Co. Ltd. (2000) 7 NWLR (Pt. 663) 105 at 128, (1994) 1 NWLR (Pt. 321) 375.

The records show that the parties to the action joined issues with respect to the question of under insurance, again now complained of by the appellant. I have earlier set out their pleadings in relation to this issue – paragraph 4 of the statement of claim and paragraph 5 of the statement of defence.

Learned counsel for both parties were correct when they stated that evidence was led in respect thereof. The records attest to this, particularly the evidence of PW1, PW3 and DW1, as well as Exhs. PL 1A an PL3 which are the endorsements on the policy of insurance as to the sum assured issued by the appellant to the respondent.

It is trite law that a trial court is bound to make findings of fact on issues joined between parties. See Karibo v. Grend (1992) 3 NWLR (Pt. 230) 426 at 440; Okonji v. Njokanma (1991) 7 NWLR (Pt. 202) 131, at 150 F-G, Per Uwais, CJN. Adeyemo v. Arokopo (1988) 2 NWLR (Pt. 79) 703. There is need for a trial court always to make a specific finding of fact where there is abundant evidence to establish a point in issue, one way or the other.

What did the trial Judge in this case do with the issue joined and evidence adduced by the parties before it?

Learned counsel for the appellant complained that despite the fact that the issue of under insurance was clearly raised in the pleadings and the evidence adduced, the learned trial Judge did not deem it fit to consider the issue probably in order to avoid finding for the appellants (See p. 18 of his brief of argument). The court therefore failed in its duty, it was submitted. Learned counsel for the respondent argued contra, by that state of the pleadings, in paragraph 5A of the defendant’s further amended statement of defence and 4 of the statement of claim, the onus was on the appellant to prove that there was under insurance which he failed to do. He cited authorities.

Counsel pointed out that the only evidence that the appellant offered in proof of the allegation of under insurance was through DW1, the loss adjuster appointed by the appellant.

He submitted that after the court reviewed and evaluated the evidence ofDW1, he came to the conclusion that he was a biased witness and his evidence was weightless. Counsel pointed out that the appellant did not challenge that finding. The court had said:

“The evidence of DW1 who cannot be said to be unbiased witness does not carry any weight, it is weightless”.

I must immediately state that looking through the judgment of the learned trial Judge, it is clear to me that in respect of some issues missing in the suit he reviewed or evaluated the evidence of the parties but did not do so in relation to the issue of under insurance. Indeed, he made no reference to the issue at all in the judgment. The finding which counsel for the respondent relies on (supra) made by the learned trial Judge, regarding the evidence of DW 1 is however not one of them. It was not with regard to that issue.

Rather, it was in relation to the issue of the extent of the mortgaged property, covered by the contract of insurance, that the court of trial made findings and comments on the weight attachable to the evidence of DW1. The respondents had claimed damages for the damage to the main building, the fence and the boys’ quarters.

Whereas the appellant in repudiating the claim, insisted that the boys’ quarters in the premises were not included. In the course of his appraising the evidence of DW 1 and the determination of that issue, the learned trial Judge stated among other things, at page 78 of the records as follows:

“From exh. PLI2, it can be gathered that the address F1 of the property is given as No.2 Gawo Road, GRA, Bauchi. This is what is contained in the proposal Form and it is in evidence that the boys’ quarters is within the fence of No.2 Gawo Road, Bauchi. My view is that from Exh. PL 12 and Exh. PL 11 and PL 10, what is insured is what is covered by C of O exh. PL11… So to say that the plaintiff did not include the boys’ quarters which fall within No.2 Gawo is absurd and did not accord with the intention of the parties and common sense. So on this issue too I find that the boys’ quarters… form pm of the insured building. The evidence of DW1 who cannot be said to be unbiased witness does not carry any weight. It is weightless .”

My finding therefore is that in the judgment of the court, the learned trial Judge did not consider the issue of over insurance or under insurance raised in the defendant/appellant’s pleadings in respect of which parties joined issues. In the record of proceedings can be found evidence adduced through DW 1 on this issue for the appellant, who raised it in its pleadings and evidence for the respondent through PW1 and some evidence elicited in cross examination from DW1.

Learned counsel for the respondent addressed the issue fully in his final address’ before the lower court – See p. 69 para. 3 of the records. He attacked the evidence of PW1 as contradictory in material facts. He urged the court to reject it.

Learned counsel for the appellant in his final submission in the court below also addressed the issue of under insurance – See page 65 (para. 3) of the records. He referred to the evidence of PW3 to show that the property was worth more than N750,000.00 which is the sum insured, so also the evidence of DW 1.

The foregoing notwithstanding, the learned trial Judge did not at all address the issue in his judgment. He made no finding and no pronouncement thereon, as if the issue did not exist. It is my respectful view that he was in error.

What then is the effect of this error on the decision of the court below regarding the defence of under-insurance which affects the damages claimed by the respondent?

Learned counsel for the appellant has urged in this regard, that this court is not helpless. For, an appellate court has undoubted power to examine the case as pleaded and the evidence led thereon in order to draw proper inference, make proper findings and apply proper law where the trial court failed to take advantage of trying the case at first instance and seeing and hearing the witnesses.

Counsel has prayed us to make a finding in the absence of one by the learned trial Judge. I think he is correct. The Court of Appeal has powers to do so, where it is quite clear from the records that evidence has been led at the trial court to establish a fact, the appellate court will review the facts and make the necessary finding which the lower court failed to do. Akibu v. Opaleye (1974) 11 SC 189 at 202 (per Sowemimo, JSC; Fatoyinbo v. Williams (1956) 1 FSC 87; Thomas v. Thomas (1947) AC 484 at 487 and 488; Woluchem v. Gudi (1981) 5 SC 291; Ebba v. Ogodo (1984) 4 SC 86 at 94; Akinola v. Oluwa (1962) All NLR Vol. 1 (Pt. 2) 277. In such circumstances the way to proceed is to revisit the pleadings and the evidence on record adduced by both parties in support of their pleadings.

For where the issue involves non-evaluation or appraisal of evidence the Appeal court is in as much a good position as the trial court to evaluate the evidence – Abisi v. Ekwealor (1993) 6 NWLR (Pt. 302) 643 at 673 Sc. See also Cash Affairs Finance Ltd. v. Inland Bank Plc. (2000) 5 NWLR (Pt. 658) 568 at 580, (per Obadina, JCA).

This court will therefore apply these principles and proceed to evaluate the evidence on record and make necessary findings regarding the issue of under-insurance raised in the appellant’s alternative defence in paragraph 5A of its further amended statement of defence. Did the appellant prove the alternative averment in paragraph 5a?

In his brief of argument the counsel for the appellant submitted that it did, and urged us to find for the appellant. On the other hand, counsel for the respondent urged that the appellant did not.

The law is that he who asserts must prove, see Okubule v. Oyagbola (1990) 4 NWLR (Pt. 147) 723; Ike v. Ugboja (1993) 6 NWLR (Pt.301) 539.

The evidence for the appellant relating to paragraph 5A of its statement of defence can be found in the testimony of DW 1 who is a loss adjuster working for the appellant. He stated at page 51 of the records while being examined in Chief as follows:-

” … we adjust (sic) the plaintiff’s claim. In the cause (sic) of adjusting the claim, I discovered the value of the insured property. I put the value of the figure not less than 1 million naira. The 1 million Naira is inclusive of the main building, the boys’ quarters and the fence. If I value the property excluding the boys’ quarters I will value it at about N850,000.00. The entire building was insured at N750,000.00 and the policy is an indemnity policy. This policy means putting the insured always in the same position as he was prior to the loss. The property was inadequately insured. The insurance practice: If this an under-insurance he becomes his own insurer for part of the uninsured risk. We call it an average clause under this policy”.

Under cross-examination, DW1 further testified thus:-

“When I came to Bauchi to adjust the claim of the plaintiff the property, has already been put in its former

position. I therefore could not have known the state of the property before the damage. Therefore, I could not have known the depth of the foundation. I read the policy before I came to Bauchi. The first time I came to Bauchi, I adjusted the loss on the main building and boys’ quarters. I am not an estate value. The value I put on the property is from my own personal opinion and experience. It is not normal when an insurer is insuring property it will have a look at the property and put a value on it. The proposal form is the basis of insurance contract. It is not the practice for an insurer to rely on facts not contained in the proposal form.” (Italics mine).

Learned counsel for the appellant had relied on the foregoing evidence of DW1 as proof that the insured property was under insured. He also relied on the testimony of PW3 where he stated that, “the property of the plaintiff is not worth less than the amount of the loan secured… ”

Learned counsel for the respondent responded that this is no proof of the averment in the appellant’s statement of defence to the effect that the property was under-insured.

I have examined the evidence on record and believe that learned counsel for the respondent is on firm grounds. A look at the evidence of DW1 and DW3 reproduced above, particularly the portion underlined (supra), shows that this does not prove the averment in paragraph 5A of the statement of defence that the property was underinsured. What is the state of the property before the damage? DW3 said he did not know. How then could he place a value on it? Is it equitable for the appellant who had accepted the value put on the property for which premium had been paid to it to find a new value, not supported by facts, for the property when a claim has arisen?

It is the position, as submitted for the respondent that the burden of proof that the property was underinsured lies on the appellant who asserted the fact.

It has a duty to establish with cogent evidence the actual value of the insured property. In doing this, it must lay bare to the court, its basis for arriving at the value which it puts on the property as its value at the time it was insured. The witness is not to speculate on it or approximate, from “personal opinion” as DW1 admits in his testimony.

The language and of the testimony of DW3 falls short of the proof required to establish the value of the property at the time it was insured. DW 1 was not in a position to know, having seen the property after it was repaired, not before the damage by storm or before the repairs.

The statement “not less than N1 million”, or “about N850,000.00”, sound like guess work, emanating from the “personal opinion” of a loss adjuster as DW1 admits, not being an estate valuer.

Learned counsel for the appellant could, in my view be right when he pointed out that the sum of N750,000.00 for which the property was insured was influenced by the fact that Union Bank would not want the mortgaged property to be of value which is less than the loan it granted. This fact, added to facts elicited from DW 1 and DW3 in their evidence at the trial (supra), does not still establish the actual value of the mortgaged property before the accident or at the time the contract of insurance was entered into, nor, the basis for the value put forward by DW1 to help this court determine the extent of the under insurance, if any.

The need to establish the value of the mortgaged property is in fact under-scored by the comment relied upon by learned counsel for the appellant at page 20 of his brief of argument, taken from page 383 of “General Principles of Insurance Law” by E. R. Ivamy.

The learned author states the effect of the “average clause” in insurance transactions, which DW1 referred to in his evidence (supra). He says that its effect is that, “though in the case of total loss the assured, receives the whole sum assured, he is, in the event of the loss being partial, entitled to recover only a fractional part of it, the fractional being the slim as enumerator, and the value of the subject matter as denominator”.

“The value of the subject matter”, in this case, is the value of the mortgaged property. That value and the basis for arriving at it must be proved for it to qualify as a “denominator” according to the learned author’s definition.

I dare add that the “personal opinion” or mere “ipse dixit” of a loss adjuster without more can hardly be used to determine such technical and professional matter as the value of property which is the province of estate valuers.

Furthermore, at the tail end of paragraph 4 of the respondent’s statement of claim he denied, “that the premises in issue was underinsured”. Then at page 10 of the records, he testified thus:-

“I have a document showing the present sum insured on this property. I mean the value of the property as

presently renewed is N750, 000. 00”.

He further testified that the value of the property was as advised by Union Bank from which he sought advice as his bankers. Evidence in proof shows that the appellant accepted the value placed on the property set out in the proposal form and insured the property accordingly. See Exh. PL 1A and PL3, the policy and the endorsement issued by the appellant. DW 1 stated in his evidence in confirmation of this that, “it is not normal when an insurer is insuring property that it will have a look at the property and put a value on it. The proposal form is the basis of the insurance contract”. He added, “it is not the general practice for the insurer to rely on facts not contained in the proposal form”.

Why then is the appellant relying on the so called “average clause”, in this case or on value not contained in the proposal form, which formed the basis for the insurance contract between the appellant and the respondent? The obvious answer has been provided by DW1’s evidence (supra) it cannot rely on such facts now. The law does not allow it. The foregoing seems to me to put paid to the argument about the value which the appellant is seeking to rake up from the “personal opinion and experience” of DW 1, the loss adjuster.

In effect, it is my respectful view that although the learned trial Judge failed to perform his duty of appraising the pleadings and evidence of the parties on this issue of under-insurance, the evidence on record shows that the appellant did not establish the application of the average clause, to the insurance transaction between the parties.

This error on the part of the trial Judge does not warrant the setting aside of the judgment of the court below.

In any event, it must be borne in mind that it is not every slip in the judgment of a court which will warrant the overturning of the judgment. See Udeze v. Chidebe (1990) 1 NWLR (Pt. 125) 141.

An error which may have the effect of an appeal being allowed or the judgment of the court below being overturned, must be such as is fatal, in the sense that it has occasioned a miscarriage of Justice.

See Fadallah v. Arewa iles Ltd. (1997) 8 NWLR (Pt. 518) 546 at 559; Ezeoke v. Nwagbo (1988) 1 NWLR (Pt. 72) 616.

It cannot, in my respectful view be said that the omission on the part of the learned trial Judge in the present case has occasioned a miscarriage of Justice.

In the premises, this issue is determined against the appellant.

In issue No.4, the appellant questions the learned trial Judge’s findings that the respondent paid premium for policy No. 734B/R41197C in advance, when there were two policy numbers on the receipt pursuant to which he so held and no attempt was made to explain why a different policy number had been written on the receipt and cancelled.

The receipt in question was tendered at the trial as Exh. PL 9. It was for the premium for the year 1994. Parties had joined issues by their pleadings as to whether or not the premium had been paid by the respondent at the time the damage to the insured property occurred on 15/6/94. For, the respondent pleaded payment in paragraph 4 of his further amended statement of claim. He proffered evidence of payment through a Union Bank Plc. staff, PW3 and tendered his receipt, exh. PL 9 dated 113/94. While the appellant on the other hand, pleaded that the respondent was in default of payment and as such the policy was not in force (See paragraph 4 of the further amended statement of defence at page 36 of the records).

The appellant led evidence denying payment of premium in the following words:-

DW3 ” … No premium was paid in respect of the policy before the occurrence of the loss. The policy No. 7346/R 5234C. This did not reflect the policy number in respect of the policy this claim is being made.”

The same witness further testified during cross-examination at page 54 of the records thus:-

“I dispute that the policy No. on exh. PL 9 and PL 1 are different. The date of the incident is 1994. I cannot remember the date of the month in which the premium is due for payment, but I know of the time the incident happen. There is no premium paid. When I see the policy, I can tell which month the premium is due for payment. On which date was the last premium date on exh. PL 9 -113/94. I do not know who issued the receipt.

The receipt bear (sic) the name of Royal Exchange.”

In re-examination the witness admits when shown the receipt, exh. PL 9 thus:

“There are the policy numbers on exh. PL 9”. (Italics mine).

The learned trial Judge in his judgment, determining the issue whether premium was paid or not which was the issue raised by and joined in the pleadings of the parties, held (at page 77 of the records) as follows:-

“On the issue of payment of premium Exh. PL 9 is very clear. The receipt for payment of premium showed 1/3/94 and the loss occurred on 15/6/94. That is three months after the payment of the premium. I say without hesitation that the premium was paid well in advance of the loss. On the whole I resolve this issue in favour of the plaintiff.”

It is against the foregoing decision of the court below the appellant complains. Learned counsel for the appellant accused that the learned trial Judge, “closed his eyes to the obvious fact that exhibit PL 9 bears two different policy numbers. One of the numbers 734C/52375C was initially written on the receipt and then cancelled even though it is still legible. The policy number of the policy that insured respondent’s house was then written on top of the column made for policy numbers”.

Learned counsel then submitted that upon making an issue of it, the onus was on the respondent to prove he had paid premium in advance of the loss, and the onus includes explaining the presence of two different numbers on the receipt purported to be evidence of payment of premium in advance but no attempt to explain this.

Counsel further accused the court below of failure to have a critical look at the receipt, Exh. PL 9 to resolve the conflicting evidence regarding the payment of premium in advance.

In response to the submission of Mr. Okoro, learned counsel for the appellant, learned counsel for the respondent, Mr. Madumere invites this court to examine Exh. PL 9 in the light of section 132 of the Evidence Act to see if it contains two numbers. He submits that Exh. PL 9 bears one policy number only and urges this court to so hold, for a number cannot be cancelled and be operative at the same time, and if it is operative according to the appellant, then it has the onus to prove it. He urges the court to uphold the decision of the trial court.

I decided in the course of considering this issue to examine as parties have urged, exh. PL 9 with regard to the two numbers said by appellant to appear thereon. There are not two sets of numbers but one. I find that a set of numbers which are not entirely legible to me were crossed out completely with cross bars thus: – (XX). Above them, are clearly written and in very legible numbers the policy number 734B r41197C, the same number as in Exh. PL1, PL 1A and PL 3 which are, the policy of insurance and the two endorsements on the policy for the value of N750,000.00 and N500,000.00 respectively. All of these were issued by the appellant. DW3 was therefore not speaking the truth when he said the policy number on Exh. PL 9 and PL 1 were different. It is observed that the same premium acknowledged on exh. PL 9 is reflected in Exh. PL 1A issued by the appellant.

The date of payment of the premium on Exh. PL 9 for the increased value of the insured property which as Exh. PL 1A shows, took effect from 17th February, 1994, is 1/3/94.

Exh. PL 9 is on appellant’s headed paper as admitted by DW3. Below the policy number, it acknowledges receipt of the sum of N1875,00 from:- “UBN (MR MUCHAEL G. ANUMNU) being renewal premium on the above …. policy number.”

Exh. PL 9 is sealed at the left hand bottom with the seal stamp of “Royal Exchange Assurance Nigeria Plc., Lagos,” and signed and dated “01/03/94” with the printed words, “customer” copy at the right hand bottom of the exhibit.

I have noted from the records that in the evidence of the appellant’s witnesses that no specific denial was made to its issuing Exh. PL 9. PW3 is a staff of Union Bank Plc to which Exh. PL 9 was issued by the appellant after it paid the premium on behalf of the respondent. To PW3 no clear question or issue whatsoever was put or raised by the appellant and its counsel concerning the authenticity of anything on exh. PL 9. Nothing has been proved as the evidence on record shows.

Appellant’s counsel’s cross-examination of respondent’s witnesses at the trial raised no such issues. No court is expected to address issues not raised by parties before it. Courts of law as a rule limit themselves to issues raised by the parties before them. See Key Industries (Nig.) Ltd. v. Aina (1997) 8 NWLR (Pt. 318) 208 SC.

The learned trial Judge would therefore be right in not dealing with the issue of alteration or cancellation in exh. PL 9 not properly raised, addressed and proved at the trial.

Exh. PL 9 is clear on the face of it and the court below was right to adhere to and give effect thereto as he did. See Union Bank v. Sax (Nig.) Ltd. (1994) 8 NWLR (Pt. 361) 150 at 165, also reported in (1994) 9 SCNJ 1 at 12-13.

When an entry in a document is cancelled, it is common knowledge that the cancellation discards that entry. Any entry made replacing it becomes the operative one.

I would uphold the submission of counsel for the respondent.

The policy bears only one number and a number cannot be cancelled and be operative at the same time.

A cancellation amounts to the obliteration of what was cancelled.

It is not the practice to wreck out for consideration a cancelled entry deemed obliterated or discarded leaving the uncancelled one and regarded as the live entry.

Throughout the pleadings and the hearing of the matter, there was no issue raised or suggestion by the appellant of fraud or forgery in relation to Exh. PL 9.

If there was any such allegation of fraud or forgery or anything untoward, the Law is that it becomes an issue only when it is pleaded and it must be proved and the onus is on the party alleging or asserting it. See Section 138 of the Evidence Act. Also Union Bank Plc v. Ozigi (1994) 3 NWLR (Pt. 333) 383 at 407. The court below had nothing of that sort before it to determine. Rather, the issue before it was whether the premium was paid in advance before the loss accrued on 15th June, 1994. The oral and documentary evidence before the court including Exh. PL 9 was that payment was duly made on 1/3/94 by Union Bank on behalf of the respondent. This was over 3 months before the damage on 15/6/94. The evidence had to be accepted by the learned trial Judge in the absence of anything in rebuttal.

I am able to agree that the onus, identified by the appellant in his brief is on the respondent to prove that the premium was paid in advance, but that onus was indeed, discharged by the respondent.

The further submission for the appellant that the onus on the respondent includes explaining the presence of the cancelled policy number and the uncancelled one, cannot be upheld. It was not made an issue at the trial, as I had earlier stated.

Learned counsel for the appellant had, submitted that in the face of conflicting oral evidence from the parties regarding the payment of premium in advance that the trial court should have critically examined Exh. PL 9 the receipt in order to resolve the conflict, since documentary evidence is usually the hanger by which to weigh and assess oral evidence. Fashanu v. Adekoya (1974) 1 All NLR (Pt. 1) 35 at 48 and Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688 at 718 relied upon.

In counsel’s view, had the court had a critical look at Exh. PL 9 he would have found that it did not establish payment of premium in advance in respect of policy No. 734B/R41197C.

With respect to the learned counsel for the appellant, the above reasoning is faulty in the extreme and the conclusion non sequitor for the reasons earlier set out. There is nothing on the face of exh. PL 9 pointed out by appellant to the court below from which it could deduce that the premium was not paid on 1/3/94 as set out therein.

As the learned trial Judge rightly stated in his judgment, the document Exh PL 9 is very clear. In my view, it speaks for itself. I had earlier set out the full import and the contents of that document.

I see no reason to reject the applicable clear and legible policy number for a cancelled number which must be regarded as discarded.

Looking at appellant’s defence in this respect and his counsel’s argument, one cannot but observe that the appellant was only “fishing” for something to hold unto to discredit an otherwise clear pleadings and evidence of the payment of premium on 1/3/94 shown in Exh. PL 9. It is my view that the learned trial Judge made the correct finding in his judgment.

Issue No.4 is therefore determined against the appellant with its supporting ground of appeal.

Issues 5 and 6 (distilled from grounds 6 and 7 of the grounds of appeal):-

Learned counsel for both parties treated these two issues together. Under the two issues, the appellant complains about the lower court’s decision on proof and award of damages. I shall, myself consider both issues together.

It has been argued for the appellant that the respondent had not proved the damages which he claimed and that in awarding damages to him, the learned trial Judge although the appellant put the authenticity of the claim in issue, failed to apply the law relating to contract of indemnity when he considered the respondent’s claim of the sum of N250,070.00 as special damages, spent on the repair of the insured premises damaged by storm and tornado.

In paragraphs 8A and 11 of the further amended statement of defence, the appellant had averred as follows:-

“8A. The defendant further adds that the material used for the repairs of the damaged portions of the premises at No.2 Gawo Road, Bauchi near (sic) the amount stated in the estimate of one Ray Douglas Iwueze. The said materials were supplied by the plaintiff who is trying to make a profit from a misfortune. The defendant shall at the trial place reliance on the report of BENEVOLENT INTERNATIONAL LOSS ADJUSTERS”.

“11. The defendant makes no admissions in respect of the averments in paragraph 8 of the statement of claim and would challenge the authenticity and admissibility of the receipts referred to therein which are all made in anticipation of litigation.”

It is helpful to also set out the respondent’s pleadings in relation to the issue of damages in his further amended statement of c1aim-

“5 On the 15/6/94 there was a great Tornado and Flood and as a result of heavy rainfall in Bauchi Metropolis and this caused several damages on a number of buildings within Bauchi Metropolis including the insured premises at No.2 Gawo G.R.A. Bauchi.

Thereafter the plaintiff duly informed the resident representative of the defendant here in Bauchi (S. Isah)

who immediately visited the scene and saw the damage caused by the Tornado and Flood. The roof of the main building and that of the boys’ quarters was damaged badly with the boys’ quarters having a greater percentage of the damage and also absorbing 2/3 of total cost of repairs.”

“6. The wall fence around the premises also collapsed. The photographs taken on the premises showing the damages are hereby pleaded.”

“6 The plaintiff subsequently contracted building contractors to estimate the cost of repairs on the premises. The estimate was done and the total cost of repairs was put at N250,070.00 by one Ray Douglas O. Iwueze. The plaintiff immediately put up his claims to the defendants for the sum of N250,070.00. Thereafter the resident representative of the defendant forward the claims of the plaintiff to Lagos, for consideration. The report note of the resident representative (S. Isah) of the defendant company dated 15/6/94 which was sent to Lagos is hereby pleaded. The claims form dated 20/6/94 filed by the plaintiff is also pleaded. The estimate of the buildings contract dated 18/6/94 is also pleaded.

7. The defendant wrote to the plaintiff on the 16/8/94 and informed him that loss adjusters would be appointed to assess the loss. The said letter dated 16/8/94 is hereby pleaded. BENEVOLENT INTERNATIONAL LOSS ADJUSTERS was later appointed and they came and assessed the loss on the main building and the boys’ quarters and the collapsed fence.

However the loss adjusters later wrote to the plaintiff vide letter dated 8/2/95 that the defendant had informed them that the boys’ quarters did not form part of the insured premises and therefore could not attract any compensation. Therefore they put their estimate at N77,150.00 for the repairs of the main building and the fence. Out of this sum the defendant accepted to pay only 65%. The said letter of 8/2/95 is hereby pleaded.

The plaintiff rejected this offer through his Solicitors letter (Madumere, Chikwendu) dated 12/3/95. The said letter id hereby pleaded. The loss adjusters letter dated 17/2/95 is also pleaded. The plaintiff also pleads his letter of 14/2/95 rejecting the loss adjuster’s offer vide its letter of 8/2/95. The defendant replied through the loss adjusters letter dated 3/5/95 still persuading the plaintiff to accept the offer. The said letter is hereby pleaded. The plaintiff shall contend that the boys’ quarters forms parts of the premises covered by the said policy.

8. As the insured premises in issue is the residential house of the plaintiff and he could not afford to expose his family to the vagaries of weather he commenced repairs work on the premises based on the estimate pleaded earlier on. All receipts for items bought (cash/credit) and payments made for the repairs of the premises are hereby pleaded. The plaintiff shall contend that all purchases of materials were at the current market price/and that the repairs were made to bring the premises into its original position.”

Paragraph 8A and II of the further amended statement of defence (supra) represent all that the appellant pleaded in reaction to the issue of damages raised by the respondent in his paragraphs 5-8 (supra).

At the trial the evidence led by parties on the issue of damages was, for the respondent, from the respondent himself – PW1, PW2, the contractor who prepared the estimate for the repairs and carried out the repairs. Various exhibits, particularly PL 2, PL4 (Estimates) PL 7A – H (Receipts), and DF 2 also came into play for the respondent.

For the appellant, DW1, then its loss adjuster testified. Then the learned trial Judge in his judgment found on the issue of damages as follows, at page 79 of the records:-

“On 3rd issue whether the plaintiff has proved the damages in accordance with the law. On this issue, I am of the view that the plaintiff has sufficiently proved his claim for special damages. He not only pleaded the damages suffered but also tendered the receipt by which he bought materials for the repairs. The receipts clearly showed the items purchased and the amount. There is sufficient proof to enable the plaintiff succeed in his claim for special damages. The evidence of PW1 Exh. PL2 and DF 2 are all clear as to the extent of the damage suffered by the plaintiff. I therefore hold that the plaintiff has proved his claim of special damages against the defendant.

On the whole, in view of my findings and reasons above, I hold that the plaintiff has establish his claim against the defendant. Accordingly, judgment is hereby entered for the plaintiff against the defendant in the sum of N250,000.00.”

Against this judgment the appellant in his brief of argument raised several issues, to which the respondent replied, also in his brief.

Learned counsel for the appellant says the lower court’s findings were perverse. He says the respondent’s special damages were not particularised in the respondent’s claim. He submits that this is fatal to the respondent’s claim. He placed reliance on First Bank of (Nig.) Plc. v. Associated Motors Co. Ltd. (1998) 10 NWLR (Pt. 570) 441

In response to this, learned counsel for the respondent pointed out from the pleadings of the respondent including the documents pleaded by the respondent and indeed the appellant itself, that sufficient particulars were pleaded and were possessed by the appellant as required by law. He reproduced paragraph is 5 and 6 of the statement of claim (supra) the evidence of PW1, PW2, and DW 1.

He referred to the contents of the documents pleaded which became exhibits at the trial. These are: exh. PL 2 – letter of complaint written by the representative of the appellant in Bauchi, one Isah sent to appellant’s head office in Lagos, exh. PL4: Estimate of the contractor (PW2) of the damage to the insured premises and who later carried out the repairs thereon. This had been sent to and received by the appellant. Exh. PL 7A – H receipts for labour and of materials purchased for the repairs.

Counsel then submitted that all the foregoing showed that sufficient pleadings and proof as required by law. He fm1her referred to exh. DF 2, the letter and report of DW1, the loss adjuster of the appellant which shows that full particulars of the respondent’s claim and break down of repairs estimate were with the appellants. The report contained a reproduction of Exh. PL 4, the estimate and cost of repairs.

When the law requires that particulars must be supplied, it depends on the nature and facts of each case.

A clear inference of what is required can be drawn from the dictum of Cotton, LJ in the English case of Philipps v. Philipps (1878-79) 4 QBD 127 where he put the essence of the rule regarding particulars thus: “………………. in my opinion it is absolutely essential, that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard and tell them what they will have to meet when the case comes for trial. The requirement to plead particulars of special damage is usually predicated on the question of fairness to the defendant”. These principles re-echo again and again in our courts. – See A.-G., Oyo State v. Fairlakes Hotels Ltd. (1989) 5 NWLR (Pt. 121) 255 SC.

That need to particulatise special damages has been reiterated and the reasons for it in the following terms:- It is in order to enable the opposite party know and meet the case being made against him. In other words, it is to obviate any surprise to the opposite party, who may not be aware of the details and circumstances from which the special damages have arisen or the basis upon which they have been calculated or arrived at by the plaintiff who claims them based on his own precise calculation. See Agbaje, JSC in A.-G., Oyo State v. Fairlakes Hotels (supra), drawing from Macgregor on Damages 14th Edition page 16 Article 19. It is with the foregoing in view that courts ought to examine the pleadings of a plaintiff who claim special damages, to see if there be sufficient facts available to the defendant that would enable him meet the claim which the plaintiff is making against him.

In applying these principles to the present matter, I have noted that paragraphs 5-8 of the further amended statement of claim (supra) and the supporting documents duly pleaded, provide sufficient particulars of the claim for damages to the insured property of the respondent, arising from the tornado. Although the heading “particulars” was not used in the statement of claim as is often the case in claims for damages or compensations, nor were the sums constituting the items of damages tabulated in the body of the respondent’s pleadings, yet all the required particulars are available therein. Much of those particulars were already known to the appellant or in the appellant’s custody either before the respondent took out the writ in this matter. This is the case with the estimate and cost of the repairs shown in Exh. PL 4 which also appeared in Exh. DF 2, the appellant’s DW 1’s report to the appellant, after he investigated and adjusted the claim of the respondent. I stand the risk of being unduly detailed and of this judgment becoming too long, should I reproduce here the contents of Exhs. PL4 and DF 2. I believe it will be sufficient to state that exh. PL4 covers a full page of a foolscap sheet. It lists out the description of the material for the repairs to the damaged premises such as cement blocks, sand, stone, cement, roofing sheets, rods, wire, timber, nails, paint, labour etc.

There are 23 items against each of which the quantity, rate and total cost are set out, calculated and totalled at N250,070.00 as claimed by the respondent in his statement of claim. This same document had been received by the appellant before the suit was commenced and its contents are on page 4-5 of DW 1’s report to the appellant, exh. DF 2 dated 14/12/94.

I am unable to appreciate how, in the light of the above, the appellant can complain about the special damages not being particularised. When all the particulars required which will enable a defendant know the case he is meeting are with his when the action is filed, I should think the plaintiff need not tabulate the particulars in the body of his statement of claim in order to be adjudged to have fulfilled the rule of particularising his claim for special damages.

It is sufficient if the plaintiff sets out sufficient facts to enable the defendant identify what is already in the custody of the defendant which constitute the object and subject of the plaintiff’s claim before the court.

The appellant is not deceived or embarrassed or surprised. It was fully seised with the claim of the respondent for special damage, how it arose, the details of items making same up and values placed on each of them and the total. The respondent has fully discharged the duty to provide particulars required by law. On the duty of strictly proving special damage which the appellant argued was not discharged by the respondent, I have carefully examined the evidence on record. It is certainly the law that a party claiming special damages is required to plead and provide particulars of the same. He is to strictly prove the special damages in order to succeed in his claim.

SeeA.-G., Oyo State v. Fairlakes Hotels Ltd. (No.2) (1989) 5 NWLR (Pt. 121) 255 SC; Odumosu v. ACB Ltd. (1976) 11 SC 55.

The recognition of the law that special damages must be strictly proved, does not convey more than a duty to supply such proof as would establish the damage, the nature of the damage, including the circumstances and extent, the value of the items at the time of the damage, what sum would be required to repair the damage, or in the case of total destruction or loss to replace the damaged or lost, item and compensate for other consequential losses which the owner may claim. See NEPA v. Alli (1992) 8 NWLR (Pt. 259) 279 at 297.

The Supreme Court of Nigeria has had cause in a number of its decisions to explain the implication of the term “strict proof of special damages”. Such can be found in Oshinjirin v. Elias (1970) 1 All NLR 153 at 156 where Coker, JSC stated:- that what is required, “is that the person claiming should establish his entitlement to that type of damages by credible evidence of such character as would suggest that he indeed is entitled to an award under that head….” In Odulaja v. Haddad (1973) 1 All NLR 191 at 196, Irikefe, JSC (as he then was) put it thus:-

“We are of the view that strict proof in the above con can mean no more than such proof as would readily lend itself to quantification. It seems to us that the nature of proof in a given case must be dictated by the peculiar circumstances of the available evidence” See also Oladehin v. Continental ile Mills Ltd. (1978) 1 LRN 60 at 64 per Obaseki, JSC.

Learned counsel for the appellant submits that no credible evidence was adduced to enable the lower court find as it did that the respondent proved entitlement to the sum of N250,070.00 as special damages. He hinged his reason for this submission on a number of matters. One of them is, that exh. DF1 written by the respondent to the appellant’s representative in Bauchi, after the tornado, referred only to the boys quarters and the main house, but C that in cross-examination of the respondent, when confronted with this, he stated that “the main house is not mentioned in the letter” (exh. DF 1). Learned counsel complained that the learned trial Judge did not deem it fit to consider this very fundamental below to strict proof needed to establish special damage.

I have examined the evidence on record and the judgment on record and the judgment of the court below. Learned counsel for the appellant correctly captured the fact that the court below did not consider this evidence. Whether it is a blow on the strict proof to establish special damage is another matter. I will now consider it with other evidence before the court.

It is on record that after the report, Isah, the appellant’s representative in Bauchi visited and inspected the damage. So he confirmed to DW1 as PW1 stated in Exh. DF2. He was put in the witness box by the appellant. He was sworn and shortly after was withdrawn by counsel for the appellant without his testifying, except for stating that he was aware of the claim of the respondent. DW 1 the loss adjuster of the appellant testified as follows regarding the damage (which he said Isah confirmed to him that he inspected) and which he saw;-

“I did discover the cause of the damage. The cause of the damage was as a result of thunder storm. The location of the property is in a mashing area and the foundation was not solid enough, and this has contributed to the collapse of the fence.

In the schedule of the policy it is defined as building in singular, not plural and fixtures and fittings.

I did see that the boys’ quarters was damaged, 2 sides of defence collapsed and a subsequent damage on the main building which the insured confirmed to us that they had to renail the sheet.” (See p. 51 of the records)

(Italics mine to be noted)

In the light of the above and all the evidence before the court, it seems to me that the appellant and the court could not have had difficulty in appreciating the extent of the damage to the insured premises, for which the respondent submitted his claim to the appellant and later filed the action in court.

I am unable to conclude that the fact that the main building was not mentioned in the letter Exh. DF1 excludes it or materially, affects the proof contained in the evidence (supra) and others on record. That it formed part of the insured premises damaged by the rain-storm is clear. This is so, in view of the above testimony of DW 1 and other evidence before the court. It would appear to me that to “renail the sheet”, spoken of by the DW1 (supra), would make no appreciable difference to the estimate and cost of repairs put in evidence, manifestly testified to by PW1, PW2 and DW1, supported by documentary exhibits PL 4, DF2 and PL 7A-7H, the receipts for materials and labour for the repairs. In exh. DF2 addressed to the appellant DW1 stated at page 3: “We called at your branch office in Bauchi and the Bauchi Manager confirmed to us that the damages were inspected by him.” This and other evidence on record show that the appellant knew of the damages and loss and it was obvious to the court below. These have been strictly pleaded and proved as required by law.

The other point on which Mr. Okoro, counsel for the appellant relied in his argument that no credible evidence was adduced by the respondent in proof of his claim for special damages is that the respondent made no disclosure as to what portion of the N250,070.00 special damages was the profit he made from the sales to himself of the building materials. This is based on the evidence that the respondent supplied the materials which was used by PW2, for the repairs to the damaged insured premises from his company for which he made profit.

In response to this, Mr. Madumere, counsel for the respondent urged us to disregard the argument as this is not supported by the pleadings nor the oral testimony in court.

The argument of learned counsel for the appellant is mainly predicated on the evidence of PW1 and PW2 from which he wants deduced, that the respondent’s claim for special damages includes an element of profit. I have carefully looked at the pleadings of the parties and the evidence adduced in court. The issue of profit purported made by the respondent in the purchase of the materials used for the repairs from his company was pleaded in paragraph 8 of the statement of defence and did constitute an issue contested by parties at the trial. In cross-examination some question about profit was put to PW 1 and PW2, which, they answered. The matter ought not to have been disregarded therefore and learned counsel for the respondent was not right in urging that it should.

The question however is, what was the profit proved which the court should have considered was made from the purchase of building materials used for the repairs. What profit did he make and how did it affect the estimate and cost of repairs? The respondent and his witness PW2 admitted that the respondent bought some of the material he used from his company Manng Nigeria Ltd. and other from other sellers. In cross-examination, the witnesses further o testified thus:- PW1- “I deal in building material which include the material I used to repair the house. It is not always cheaper to use my own material rather than to buy from 3rd party. I am aware that if I buy from the 3rd party it may be more expensive. If there is no issue, I will use the one I have and buy the one I don’t have. I bought some of the materials from my company. I bought zinc, paint, ceiling nails from my company. It is called Manng Nig. Ltd. I am a shareholder, others Ikenna Vincal, Okedi Fredrick. I made a profit from the sale. The defendant surveyed the place before insuring the house…. ” PW2: “The plaintiff bought the material with which I did the job. Yes the plaintiff supplied all the materials with which I did the job. I built it as it was before. Yes I can tell which of the building can better withstand element like storm. I want the court to believe the cost of repairs. Exh. PL4 I am aware most of the material I used came from the plaintiff’s shop. The plaintiff is a building material dealer. Naturally he will sell them at a profit.”

Counsel for the appellant in his brief of argument informs this court that the receipts did not amount to N250,070.00 and do not bear the name of Maang Nig. Ltd., the respondent’s company. I have seen the receipts evidencing the cost of labour and materials used for the repairs. These are Exhs. PL 7A-H, PL 7A-C for labour charges bear the name of PW2 the Contractor who repaired the damage and made Exh. PL4 the estimate. Exhs PL 7D-E bear the names of 4 suppliers:-

PL 7D – for wood, PL 7E for sand and stone , PL 7 F for Blocks, PL 70 for Iron rods. Exh. PL 7H bears the name of Maang Nig. Ltd.: for zinc, nails, ceiling and paint as stated by the respondent in his evidence in court.

They all added up to N250,070.00. Let me digress here to state that the learned counsel for the appellant could thus not be correct in that regard. Learned counsel for the appellant however correctly pointed out the admission of the respondent and PW2 on the issue of profit (supra). What is its effect on the requirement of strict proof of special damages. Together with this is the further submission that the policy being one of indemnity, that the respondent was not entitled to make a profit from the loss. The case of Castellain v. Preston (1883) 11 QBD 380 at 386 per Brett L.J.) and First Bank of Nigeria Plc. v. Justice Abubakar Abba (1998) 10 NWLR (Pt. 569) 227 at 237 per Edozie, JCA are cited. The principle that an insured cannot recover more than the sum insured and cannot recover even the sum insured unless he proves a loss to that amount which the appellant relies on is not in doubt.

The issue here is whether the respondent has proved a loss to the amount which the court below awarded him. For the respondent, it is submitted that there is no evidence of any sort to indicate that the prices were over and above the market price. That submission to my mind is not the issue.

I must however admit that in resolving this issue, I had some difficulty in identifying what was the profit which the appellant was trying to establish and which the respondent admitted. Was it his profit as a shareholder of Manng Nigeria Ltd. (by way of dividend).

The witnesses testified that it supplied some of the building materials. Or, was it, as the appellant’s counsel in his brief now urges, all the materials which must have been supplied by the respondent but faked the receipts? As the appellant who asserts that fact of the profit has not shown what it is, it seems to me that the learned trial Judge was not in error when he decided to predicate his decision after considering this point on what the evidence before him had established. It has been noted that the respondent has not claimed any sum above the sum insured by Exhs. PL1 and PL1A issued by the appellant. That the damage was caused by tornado is not in dispute.

Nothing concrete has countered the estimate and cost of repairs proffered in evidence. There is only the assertion that there is an element of profit. What is the element? Nothing has been shown. I would therefore discountenance the point which only leads to speculation on what it is.

I have earlier settled the issue of under-insurance, repeated here by Mr. Okoro, counsel for the appellant.

One other point raised for the appellant which calls for attention is the defence of “betterment and use of salvage materials in paragraph 58 of the appellant’s further amended statement of defence. I see no concrete evidence establishing the quantity and value of the salvage material which DW1 referred to in his evidence, which would have enabled the court below consider it in assessing the cost of repairs. Although the learned trial Judge ignored it, I am of the view that even if he considered it, there was no evidence put before him, by the appellant who asserted it which would have enabled him to determine its effect on the cost of repairs evidenced by the oral testimony and documents before the court. This is so also particularly when the testimony of DW 1 on the issue is taken into account.

DW1 had visited the damaged premises for assessment after he received the appellant’s instructions by its letter dated August 25th 1994. This was over two months after the damage occurred. It is not controverted that the damage occurred on 15th June, 1994 and the premises was the residence of the insured respondent and his family. It had to be repaired from about 2Sth June, 1994. This was after the representative of the appellant in Bauchi, to whom the damage was reported on 16th June, 1994 came to inspect it. DW1 stated both in his report to the appellant – exh DF2 and his testimony in court that at the time he received appellant’s instructions and he went to the insured premises for the assessment, the repairs had understandably been carried out and that he was not in a position to know the state in which the property was before then. There is evidence on record that the Manager of the appellant in Bauchi confirmed to DW1 that he inspected the damage after it was reported to him. There is however no evidence on record showing what the result of the Manager’s inspection was. That would possibly have provided the clue as to the salvage which the appellant thinks ought to have been taken into account in assessing the cost of repairs. Speculation on evidence is not one of the functions of a court of Justice. Rather a court receives and acts on evidence placed before it by parties in accordance with the law. See Seismograph Ltd. v. Ogbeni (1976) 4 SC 85. The learned trial Judge in the circumstances had acted correctly in ignoring this issue of betterment and salvage as he did that of element of profit, when no evidence was placed before him to assist him determine the issues raised by the appellant.

Under issues 5 and 6, learned counsel for the appellant also submitted that the trial Judge did not base his consideration of the claim for damages on the relevant legal principles and urged that this is a proper case for an appellate court to interfer and since the damages claimed could not be proved, the only cause open to the lower court was to dismiss the claim. He placed reliance on Sommer v. Federal Housing Authority (1992) 1 SCNJ 73 at 84, (1992) 1 NWLR (Pt. 219) 548. Counsel urged this court to dismiss the claim.

In view of all that has been stated in the course of addressing the various points raised by the parties under issues 5 and 6, my answer and conclusion is that the learned trial Judge based his decision on legal principles, on the pleadings of the parties and the evidence before him. This is not a proper case to set aside the learned trial Judge’s decision. The decision is not perverse. Issues 5 and 6 are determined against the appellant together with their originating grounds of appeal i.e. grounds 6 and 7 therefore.

On the whole. I would dismiss this appeal as the issues arising there from have been determined in favour of the respondent and against the appellant. I affirm the judgment of Bala Umar, J. sitting at the High Court of Justice, Bauchi, delivered on 31/3/99. Appeal dismissed with N5,000.00 costs against the appellant, in favour of the respondent.

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Other Citations: (2002)LCN/1306(CA)