SALAMI vs. STATE INSURANCE CORPORATION [1967]DLCA1540

Date	1967-06-24
Suit No.
Citation No.	[1967]DLCA1540

OLLENNU JA

APALOO JA

LASSEY J.A.

C. HAYFRON-BENJAMIN FOR THE APPELLANT.

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS.

[1967]DLCA1540
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													<main id="main" class="content" style="min-height: 60rem" >SALAMI <o:p></o:p>vs. <o:p></o:p>STATE INSURANCE CORPORATION <o:p></o:p>[COURT OF APPEAL]<o:p></o:p>[1967] GLR 442<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 1.0pt 0in">

DATE:
26 JUNE 1967<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

C. HAYFRON-BENJAMIN FOR THE APPELLANT.<o:p></o:p>

NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENTS.<o:p></o:p>

</div>CORAM:
<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
padding:0in 0in 0in 0in">

OLLENNU, APALOO AND LASSEY JJ.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p>JUDGMENT OF APALOO J.A.<o:p></o:p>Apaloo
J.A. delivered the judgment of the court. After hearing argument on 2 May 1967,
we dismissed the appeal in this suit and indicated that we would set out our
reasons later on. This we now proceed to do.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant, who described himself as a trader, was in January 1963, minded of
insuring his stock-in-trade in his wholesale premises situate at ZE 1 and 2
Plot 7, South Zongo, Kumasi. Accordingly, on 9 January of that year, he filled
a printed proposal form of the defendant corporation. The answers to the
questions on the proposal form were stated to be the basis of the contract and
were said to be incorporated in any contract eventually entered into between
the appellant and the corporation. One of the questions to which the appellant
gave an affirmative answer in the proposal form was, whether a night watchman
would be employed at the premises sought to be insured. On the basis of the
answers, the corporation issued in favour of the appellant, a policy of
insurance and in consideration of the premium, insured the appellant’s
stock-in-trade in the aforesaid wholesale against burglary in the sum of
£G3,000.<o:p></o:p><o:p>&nbsp;</o:p>The
appellant claimed that on 6 March 1963, the insured premises were broken into
and goods valued £G2,117 odd were stolen. He therefore claimed to be
indemnified in this sum by the corporation. The latter addressed to the
appellant, a letter dated 6 May 1963 and repudiated the claim on the ground
that the appellant committed breaches of two essential conditions of the
policy. These were, first that no night watchman was employed at the premises
and secondly, that the appellant’s books of account were not written up daily.
The appellant then invoked the arbitration clause in the policy and sought to
have the difference between himself and the corporation resolved at an
arbitration. The latter declined to submit to arbitration and the appellant
being left with no alternative, on 13 November 1963, issued in the High Court,
Kumasi, a writ claiming to be indemnified in the said sum of £G2,117.<o:p></o:p><o:p>&nbsp;</o:p>At the
trial (reported in [1964] G.L.R. 377), there was practically no dispute on the
facts although the learned trial judge (Sowah J.), seemed somewhat sceptical
about the genuineness of the burglary. On this, the judge, inter alia, observed
at p. 378:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“The
thieves must have been on the premises for several hours, and must have carried
the goods away in a vehicle. It is of interest to note that no one on the
premises heard anything of the burglary, though part of the premises were
occupied by tenants and the police were not able to find any finger prints.”<o:p></o:p><o:p>&nbsp;</o:p>The
learned judge however dealt with the case on the footing that a genuine
burglary took place entitling the appellant to recover on the policy. He
however found that some of the answers the appellant gave in reply to the
questions on the proposal form were misstatements and further that although the
appellant warranted that he would employ a watchman, he failed to do so and was
in breach of that warranty. Counsel for the appellant did not dispute that
breach of warranty but put forward as a matter of law, the proposition that it
was open to the corporation to repudiate the whole of the contract on the
ground of misrepresentation or breach of warranty but that as the corporation
did not seek to do so, they were not entitled to repudiate a claim under it.
For this bold proposition, counsel cited to the court below, the case of West
v. National Motor and Accident Insurance Union Ltd. [1955] 1 All E.R. 800, C.A.
and strongly relied on it. The learned trial judge did not accede to this
submission as he took the view that West’s case was distinguishable from the
instant one. He said at p. 379:<o:p></o:p><p class="MsoNormal" style="margin-top:0in;margin-right:0in;margin-bottom:5.0pt;
margin-left:.5in;text-align:justify;mso-pagination:none;border:none;mso-padding-alt:
31.0pt 31.0pt 31.0pt 31.0pt;mso-border-shadow:yes">“I am of
the opinion that the West case (supra) was decided on general principles, namely,
that where a person has been induced by a material misstatem</main>