|
MARGARET
INSAIDOO J (MS).
JUDGMENT
PREFACE:
BRIEF FACTS
The Plaintiff did not file his
address on due date and therefore
it was deemed that they had waived
their right.
The Plaintiff is a company
registered under the laws of Ghana
engaged in the business of
manufacturing and the Defendant is
a body corporate also registered
in Ghana whose business is in
insurance.
The Plaintiff used to be called
Ro-Marong Grafix Ghana Ltd., but
recently changed its name to
Grafitec Ltd.
The Plaintiff was the holder of a
combined fire burglary insurance
policy No. FC01999040013 issued by
the Defendant to Plaintiff.
The plaintiff according to
Paragraph 5 & 6 of Statement of
Claim stated thus:
"By the terms
of the said policy the
Defendant insured the Plaintiff
against losses or damage
occasioned by either fire or
burglary or both to the
Plaintiff's factory premises near
Odorna Railway Station, Kwame
Nkrumah Circle, Accra (formerly
known as Rubber Products
Warehouse, Industrial Area Odorna,
Accra) together with all other
properties of the Plaintiff
on the said premises including
loose tools, raw materials, semi
and finished products and
vehicles. "
'The sum insured under the said
policy was Two hundred and seventy
thousand United States Dollars
(US$270,OOO.OO)."
On 13th August 2005,
there was a theft at the Plaintiff
premises as a result of which 58
galvanized billboard frames of
11 Ocm x 300 cm in dimension
valued at forty-four thousand and
eighty United States Dollars
(US$44,080.00) were stolen from
the Plaintiffs premises.
The Plaintiff averred that the
theft and burglary occurred when
the padlock affixed to the iron
gate to the Plaintiff's said
premises was forcefully and
violently damaged and the items
stolen from a secured yard inside
the said premises.
A
complaint
of the said theft· was
accordingly made by the Plaintiff
Company to the Adabraka Police.
The Plaintiff informed the
Defendant
of the said theft and was made
to complete a Burglary
Claim Form in pursuance of a
claim for the value of
the loss or damage suffered by it.
2
In spite
of the said claim made by the
Plaintiff and a subsequent
claim made through its Solicitors
to the Defendant, the Defendant
has failed and/or refused to
settle the said claim."
Therefore the Plaintiff Claims
against the Defendant the
following reliefs:
i)
Recovery of the sum of Forty-Four
Thousand, and Eighty United States
Dollars (US$44,080.00) being the
value of loss or damage suffered
by the Plaintiff by reason of the
theft or burglary that occurred on
the 13t day of August,
2005 at the Plaintiff's premises
insured by the Defendant under a
combined policy of fire and
burglary
ii) Interest on the said sum at
the prevailing bank lending rate
from the 13th day of
August, 2005 to the date of
payment
.
THE DEFENCE
The Statement of Defence stated
that:-
"Further to the denial of
paragraph 5, the Defendant says
that, the property insured by the
Plaintiff were the premises at
H/No. 4 Oloti Street, Labone,
Accra".
In the said insurance, the Cover
provided by the Policy
specifically mentioned:
a)Dwelling
house/office/show room. b)
Factory/stores
all at H/No. 4 Oloti Street,
Labone, Accra.
This was later amended to reflect
that the plaintiff had two
premises situate at Labone and
Odorna. Further that, the
Plaintiff was in breach of the
duty to disclose material facts
under the contract by withholding
information that some property
intended to be part of the insured
property are kept in the open yard
and not in the building as
required by the Policy.
"The Defendant says in answer to
paragraphs
10-11, that the filling of
a form is a normal
procedure with the company, in
order to know the liability, which
has arisen in terms of the
Cover provided under the Policy. "
The Defendant counter-claimed for
the following:-
"The Plaintiff is indebted to the
Defendant for the period mentioned
above in the sum of
USD$12,502.00 and
˘14,567,246.00
as unpaid premiums.
The Defendant hereby claims
payment of the sums
of USD$12,502.00
and ˘14,567,246.00 with
interest at th,e prevailing bank
rate from 31st March
2005 to date of judgment. "
3
The issues that were settled for
trial were as follows:
1)Whether
or not the property insured
covered the factory
as captured under the policy or
the entire premises.
2)Whether
or not there was forcible or
violent entry or exit into the
factory.
3)Whether
or not the plaintiff is entitled
to its claims.
The Evidence Adduced
at the trial
The Evidence
of the Plaintiff
The plaintiff called two
witnesses.
PW1,
Fouad Wajih Nasser said that he
was the owner of the plaintiff
company. He deposed to the fact
that the firm had two premises,
the Head office was situate at
Labone and the factory was at
Odorna behind the Kingdom
Transport. In August 2005, he
noticed that a burglary had
occurred. The lock was forced
open. Certain signages (Billboard)
which were manufactured by
plaintiff were missing. The report
were made to the Police who
conducted the investigations and
came out with a police report.
This report dated 17/10/05 was
tendered as Exhibit 'A'. The
Plaintiff also tendered a policy
schedule dated 15t
March 2005. He filled a burglary
claim form which he tendered as
Exhibit 'C' dated 8th
November 2005.
The Plaintiff insisted that the
defendant inspected his premises
before the policy was issued. The
time the defendant conducted the
inspection; there were billboards
and signages at the premises. The
Defendant did not raise any
concern as to what they saw.
The Plaintiff however admitted
that it owed arrears of insurance
premium. This was a result of the
Defendant's failure to attend to
their claim in respect of the
burglary. The Plaintiff said that
a total of 58 bill boards were
stolen from its premises it was
therefore claiming 44,080 dollars
being the value of these bill
boards.
Description of the Compound.
The Plaintiff described the
security measures of the factory
premises in the following terms:
"It was
a
compound of almost one acre
protected by 8 foot high
fence wall with razor barbed wire
on top and the entrance was a
steel gate was 7 feet
high. Within a yard was an
enclosed structure where goods
were kept this has a gate
of 7 feet high and this
gate was secured by a
padlock."
Cross examination
-------- .
During the cross-examination of
the Plaintiff he told the court
that the signages
were one by 3 metres long and were
re-enforced ·by galvanized iron
and two people could lift it. The
witness disagreed that the
signages did not form part of the
insured items. He disagreed also
that the current claim being made
was a
4
false one. Counsel suggested to
the plaintiff that it was nigh
impossible for anyone to lift over
the 8 feet wall the signages which
were allegedly stolen.
The Second witness of the
Plaintiff was one Nene Kpobi
Amegatcher who used to be the
Outdoor Manager of the Plaintiff
company. He said that his
attention was drawn to a theft at
the premises of the Plaintiff
Company. Upon inspection of the
warehouse he found that one of the
padlocks had been forced open.
"The main building was locked.
There was another compound within
the fence yard. The gate had two
padlocks. There was one on the
right hand side and one at the
left hand side. The one at the
right hand side was forced open
but the one on the left was
intact. After inspection I went
back to the police station and the
police invited the security men
for question."
He confirmed that 58 pieces of
billboards were missing. During
crossexamination,
the witness said that he had
worked with the plaintiff company
for about 7 years. He said that
from his experience, the mode of
conveyance of the signages would
be by vehicle he also said that it
would take two persons to carry
one of these signages. In his
estimation it would take two to
three hours for two persons to
pack 58 signages into a truck.
He also said the security men at
the site informed him that they
were not aware that a theft had
occurred. Those security men had
subsequently been dismissed from
the Plaintiff Company.
The witness also said that he did
not notice that there was any
damage done to the barbed wire. He
insisted that a theft took place
that however the report made was a
true report.
Evidence of the Defendant
The claims manager for the
Defendant Company, Mr. Mohammed
Abubakari Wakaso in his evidence-
in- chief .said that they had an
insurance policy with the
Plaintiff Company .. They insured
them against fire and burglary. In
the month of August 2005, they
were informed of a burglary by the
Plaintiff. They inspected the
premises and issued them with a
claim form. The Defendant
conducted further investigations
and they come to the conclusion
that the loss that had occurred
was not a loss properly so called
under the insurance policy.
Indeed he spoke to the two
watchmen and they denied knowledge
of the loss. They were informed
that there was no break- in and
that probably the alleged robbers
lifted the goods over the fence
wall. The defendant subsequently
wrote a letter to the plaintiff
and denied liability of the claim.
During cross-examination, the
witness admitted interestingly
that, although the report of the
theft was made and they visited
the site on the 16th of
August to investigate the
allegation, it' was not until the
28th of November 2005
that the watchmen were
interviewed. The witness said
th~re was no sign that the other
padlock was forcefully opened.
However, the police report
indicated that the padlock was
forcefully opened one notes
however that the report said that
the case was still under
investigation.
In his evidence, he pointed out
the contractual obligation that
arose when parties insured their
product. Incidental to this
obligation is the principle of
utmost good faith on the part of
the insured to disclose material
facts that would impact the value
to be appended to the insured
product. Further, the liability
that arises in the event of a risk
is subject to the strictest
interpretation of the policy.
Having looked at Exhibit
'8', he said in his evidence:-
Q: For insurance
purposes does it make any
difference where the items
insured are located?
A: Yes, it does.
Q: With reference
to the stolen items how would it
have affected it?
A: In relation to
the case at hand, where we have a
large expanse of land
within which a building is
standing, roofed and fixed with
doors, we would expect every item
to be in the building. If in the
estimation of the insured, the
items would be outside the
building, we need to be informed
of the location because it is a
material fact that would influence
our decision in accepting the risk
or declining it, or other factors
would be considered at that stage.
(pg. 8-9:)
Earlier at page
7-8 he said:
Q: From the policy
that we have, before where were
the items expected to
be?
A: We had provided
the policy in respect of the
factory building and that is
where the items were expected to
be ..
The witness said that it was the
intention of the defendant to
settle the dispute amicably.
Indeed, he suggested that the
plaintiffs be paid an Ex-gratia
award. However, before they
could realize, the plaintiff had
issued the writ. The witness was
emphatic that in his view, no
theft had occurred.
The second witness of the
Defendant was one Alfonz Akwasi
Amoah the General Manager of the
Defendant Company. He confirmed
that the plaintiff made a claim on
their insurance policy in respect
of burglary of billboards. On
whether the "stolen items" were
expected to be in the enclosed
building as part of the raw
materials; the witness said at
page 2 of the proceedings of 1 sl
March 2007 as follows:
"In relation to the case at hand
where
we have a large expanse
of materials within which a
building is standing roofed and
fixed with doors, we would
expect every item to be in the
building; if in the estimation of
the insured they expect that the
items would be outside the
building, we need to be
informed of the location because
it is a material fact that
would influence our decision in
accepting the risk of declining it
or other factors would be
considered at this stage."
The witness said that for the
policy to be operational, or for a
person to claim under the policy,
1)There must be a policy of the
loss
2)The loss must be covered under
the policy,
3)And that the location must be
recognized under the policy and
that the values that were insured
must tally with the values given
and the identity of the claimant
must be checked.
He said that after investigations,
they found out that no loss had
been incurred and therefore
repudiated the liability. He also
said that the plaintiff had not
fulfilled all outstanding premiums
at the time of the theft.
During Cross-examination, he
disagreed with the suggestions
that the items that were kept
outdoors including the signages
that were stolen formed part of
the insurance policy. He said that
it was not the duty of the
defendant to visit the premises
when the policy was being renewed,
but that there was a continuous
duty of disclosure by the insured.
To the extent that if any items
had changed, then the nature of
the risk had also changed and
therefore they, the insurance
company needed to be informed of
that change.
He also insisted that the items
were not in the secure place
within the contemplation of the
policy and that was why the
defendant repudiated the claim.
Visit to The Locus
The parties, their counsels and
the court visited the locus on the
4th April 2007. The
purpose of the visit was to
inspect the insured premises and
to ascertain how the 58 signages/billboards
were stolen.
A
report was subsequently tendered
in evidence by the Registrar of
the Court as Court Exhibit "1"
The findings and observations were
that, in view of the height of the
wall with a barbed fence, it
looked a daunting task for 58
signages which were found to be
quite bulky and weighty to be
thrown over in a single operation.
The yard is fairly secure with one
entrance and a security check
point.
FINDINGS
Whether or not the property
insured covered the factory as
captured under the policy or the
entire premises.
Exhibit B, the insurance policy
describes the items insured.
Item 3 includes "raw materials
consisting of plywood, aluminum
profiles, steel plates, steel
pipes and others etc.
The buildings in item (1)
Item 1 is the building. The
plaintiff's evidence was that the
billboards were covered by the
policy. This was also corroborated
by what the police report which
stated that the billboards were
taken from a secured yard inside
the factory.
The issue is whether or not the
signages were stolen from a locus
or premises that were covered
under the policy?
The doctrine of uberrima fide and
the duty of full disclosure has
consequences on a claim by the
insured.
Did the plaintiff disclose all the
facts as to where the signages/bill
boards were located? Were they
supposed to be within the
constructed factory premise (the
building -item one), or they were
in the outer perimeter in the open
yard? Did the non-disclosure taint
the claim? The law imposes an
onerous duty of disclosure on
proposers because they are
supposed to have a detailed
knowledge of the risk which is not
available to insurers. It was the
duty of the insured to disclose
the location of the billboards. On
the facts and on their own
admission, the items were not in
the enclosed premises and
therefore fell out of the
insurance cover.
Whether or not there was violent
entry or exit to and from the
factory.
The matter was reported to the
police and they found per their
report, Exhibit "A" dated 1 ih
October 2005 that " it was
detected that the thieves gained
ingress into the factory premises
where the billboards structures
were kept by damaging a
padlock affixed to one of the iron
gates".
The plaintiffs in their evidence
confirmed the findings of the
police. The defendants strenuously
sought to prove that there was no
evidence of forceful entry. On the
totality of the evidence presented
before me, including the report on
the visit to the locus, where I
personally observed the size and
weight of the billboards or
signages as they called them, I
find that assuming, without
admitting that there was a
forcible entry, which we could not
ascertain that fact at the time of
the visit and even when the
defendants visited, that the
padlocks that had allegedly been
damaged presumably, had been
changed. The damaged padlock was
not exhibited.
Even so, it could not have been
done without the knowledge of the
security men on duty as they were
quite closely located to the door
and that door was in the line of
vision of the security men. Be
that as it may, the court cannot
conjecture on that point, and the
only document that is close in
point in time is the Police
report. Exhibit "1" give us a
contrary view. It could be
explained that the damaged padlock
was replaced by the plaintiffs at
the time of the defendants visit.
In any case, the investigations
were still ongoing at the time the
report was filed. I therefore
reject that exhibit as
inconclusive of the fact that
there was forcible entry.
The court observed all this in the
visit to the locus. Particularly
the size and weight of the
allegedly stolen items were such
that in all fairness, it would be
nigh impossible for them to be
thrown over the fence, all 58 of
them in one clean swoop? I am
persuaded by the defendant's
position and particularly by the
visit to the premises in issue and
findings there from that the
plaintiffs assertion or claim is
not probable. In the
circumstances, I find that the
plaintiff has failed to discharge
the burden of proof imposed on it
by law.
8
In the rather flamboyant language
of counsel for the defendant, this
suit is a "brazen commando
attack on the citadel of
the law."
Whether or not Plaintiff is
entitled to its claim?
REQUIREMENTS OF THE LAW
The legal maxim of He who asserts
must prove is to well entrenched
in the law of evidence that the
Plaintiff in this suit carries the
burden of establishing the
authenticity of his case. Says his
Lordship Kpegah JA (as he then
was) in ZEBRAMA vrs SEGBEDZI
(1991) 2 GLR 221 @ 246:
....... a person who makes an
averment or assertion, which is
denied by his opponent, has the
burden to establish that his
averment or assertion is true.
And, he does not discharge this
burden unless he leads ADMISSIBLE
AND CREDIBLE evidence from which
the fact or facts he asserts can
properly and safely be inferred.
The nature of each averment or
assertion determines the degree
and nature of that burden
(emphasis mine).
Section 11(4) $ 12 of the Evidence
Decree 1975, NRCD 323 provides
that the standard of proof in
court cases was proof by the
preponderance of probabilities, so
that the tribunal of facts "is
convinced that the existence of a
fact is more probable than its
non-existence".
Is it the case that the evidence
of the Plaintiff has been so
"flawed and corrupted by the
obvious improbability of the
alleged theft that they have
failed to satisfy the rigorous
requirements of the law"? The
answer in my view is yes.
On the totality of the evidence
adduced before me and on the
relevant sections of the Evidence
Decree, as I have quoted above;
The book entitled THE MODERN LAW
OF INSURANCE by (MCGEE)defines the
Burden of Proof in the following
terms: "It is for the insured
to prove that a loss has
taken place and that this loss
falls within the insuring clauses
of the policy. Once that
has been done, it is for the
insurers to establish that the
loss falls within one of
the exceptions, or that there has
been a relevant breach
of condition. The burden of
proof is of course
higher where fraud is alleged,
since there is a general
principle that fraud must be
proved to a high standard".
IN THE CASE OF NEMCHAND PREMCHAND
SHAD V SOUTH BRITISH INSCE
CO. L TD.[1965] EA 679
(E AF)
The Facts of this case were that
the appellants were insured with
respondent against loss of goods
as a result of housebreaking
"causing actual visible damage 10
Ihe premises or part thereof'~
AppeJJants made a claim in
respect of the value of
certain goods which had
disappeared from the premises.
Respondent rejected the claim and
appellants brought these
proceedings contending that the
premises had been broken into and
the goods stolen.
Evidence called by respondent at
the trial showed that it was
highly improbable that the
premises had been broken into. The
trial judge found that appellants
had failed to satisfy him that the
loss resulted from a housebreaking
and dismissed the action (but
without making any finding of
fraud). On appeal appellants
argued that it was not for them to
prove how their shop was broken
into and that, on the evidence,
the burden of providing that no
theft had taken place was shifted
onto respondent, and that the
trial judge had wrongly rejected
their contention that a theft and
a breaking-out would be covered by
the policy:
Held: an assured need only prove
that loss was caused by some event
covered by the policy, but if his
case is that the loss was caused
by
a
breaking-in or a
breaking-out then his evidence
must prove it, which appellants
here had failed to do, not having
satisfied the court that there was
either a breaking-in or
a breaking-out.
Also in the case of THE POPI M
[1985] 2ALL ER 712, the
principle was enunciated that a
claim will fail where the insured
is not able to demonstrate the
cause of the loss, and that the
insurer does not have to establish
that the cause was an excluded
peril.
The case of Norwich Union Fire
Insurance Society Ltd v. Tabbica
& Sons [1967] GLR 226,
emphasizes the importance of
disclosure.
Similarly the case of Guardian
Assurance Co. Ltd. v. Khayat
Trading Store [1972] 2GLR
48.CA
I
therefore find that the plaintiff
has not been able to discharge the
burden imposed on it. On the
totality of the evidence before
me, I am not convinced that there
was indeed a burglary, the
plaintiffs are therefore not
entitled to their claim.
COUNTERCLAIM
I
find as proved the counterclaim of
the Defendants. The plaintiffs
admitted in evidence that they
indeed were not up to date with
the payments of their premiums for
the insurance policy taken with
the defendants.
In the proceedings of the court
dated 8th February 2007
at page 7, the Managing Director
of the plaintiff company admitted
as follows:
Question: "Defendants are also
saying that you owe them arrears
of premium?"
Answer: "Yes and just to be
brief it was not just burglary and
fire but we gave them
business in
terms of vehicles,
trucks, workmen
compensation .... : "
i)
I therefore order that t he
plaintiffs' pay to the defendants'
the sum of USD12,502.00 and
˘14,567,246.00 cedis being unpaid
premiums.
ii) Interest on the said sums in
accordance with C.1. 52 with
effect from 31 st March, 2005 till
date of payment.
iii) Costs of thirty million cedis
(˘30,000,000.00) awarded to the
Defendant.
(SGD)
MARGARET INSAIDOO J (MRS)
PLAINTIFF
DEFENDANT
PARTIES:
COUNSEL:
ABSENT
RICHARD KOFI AFENU HOLDING THE
BRIEF OF DAVID HESSE FOR THE
PLAINTIFF
AHUMAH OCANSEY FOR THE DEFENDANT
|
