BAWA INTERNATIONAL (GH) LTD. vs. CDH INSURANCE [2009]DLCA6655

Date	2009-02-12
Suit No.	CIVIL APPEAL NO.: H1/72/08
Citation No.	[2009]DLCA6655

ASARE KORANG J.A. (PRESIDING)

MARIAMA OWUSU J.A.

AYEBI J.A

MR. KWAME BOAFO AKUFFO FOR PLT’/APPLT’

VERA AYISI (WITH HER RICHARD) FOR DEFT’/RESPT’

[2009]DLCA6655
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													<main id="main" class="content" style="min-height: 60rem" >BAWA INTERNATIONAL (GH) LTD.<o:p></o:p>vs.<o:p></o:p>CDH INSURANCE<o:p></o:p>[COURT
OF APPEAL, ACCRA]<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">

CIVIL
APPEAL NO.: H1/72/08&nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; &nbsp; DATE: 12TH FEBRUARY 2009<o:p></o:p>

VERA
AYISI (WITH HER RICHARD) FOR DEFT’/RESPT’<o:p></o:p>

<p class="MsoNormal" align="center" style="text-align:center;border:none;
mso-border-top-alt:solid windowtext 1.5pt;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:1.0pt 0in 1.0pt 0in">JUDGMENT<o:p></o:p>

</div>AYEBI
J.A. <o:p></o:p>This case involves a claim
for indemnity by the plaintiff/appellant (hereinafter called plaintiff) on a
fire policy she took with the defendant/respondent on goods described as
pharmaceuticals.&nbsp; The facts are in the
main straight forward. <o:p></o:p>The plaintiff is a dealer
in pharmaceutical goods.&nbsp; The plaintiff’s
warehouse No. MA 222/12 is situated at Mile 7 Alhaji-Accra.&nbsp; On 18/10/01, plaintiff insured pharmaceutical
goods in the said house in the sum of ¢375,900,000.00 per policy NO. GHO
302J-0081 CDH1/F/01/30049 (01F58) with defendant respondent (hereinafter called
defendant) for one year duration.&nbsp; On
2/06/03 the sum insured on the goods was increased at the request of the
plaintiff to ¢800,000,000.00, again for one year.&nbsp; The original policy No.01F58 was endorsed by
the respondent to reflect the increment.&nbsp;
Yet again on 24/03/04, the sum insured was increased and was evidenced
by renewal endorsement on the original policy from ¢800m to ¢2 billion for one
year. <o:p></o:p>In securing the original
policy and the subsequent endorsements, plaintiff dealt with two agents of the
defendant and verbally.&nbsp; That is to say,
the agents brought him the proposal form, told him the premium payable, took
his cheques to the defendant and brought him the policy.&nbsp; In similar manner, plaintiff’s Managing
Director Eric Kwaku Osafo (PW1) got his vehicles, an uncompleted hotel project
in Kumasi and a house on the Spintex Road insured. <o:p></o:p>Meanwhile, plaintiff’s
Managing Director, PW1 has partially completed a warehouse at
Kwashieman-Sowutuom-Accra.&nbsp; The house is
numbered N0S0/B/1619.&nbsp; PW1 verbally
requested for a fire policy on the Sowutuom house through defendant’s agent
Kwame Pimpong (PW2) because he intended to move his pharmaceutical stock at
Mile 7, Alhaji into it.&nbsp; Upon that
information, defendant issued a Business premises comprehensive policy No.
GH134J0004 commencing 23/06/04 to 22/06/2005 in the personal name of PW1, Eric
Kwaku Osafo. <o:p></o:p>Plaintiff indeed moved the
stock into the Sowutuom warehouse.&nbsp; Kwame
Pimpong PW2, went to inspect the stock at the new location.&nbsp; But then no endorsement was made on policy
No. 01F58 to cover the new location of the goods. <o:p></o:p>As fate will have it, a
fire broke out in the Sowutuom warehouse on 10/07/04.&nbsp; Both the warehouse and the pharmaceutical
products worth ¢2,370,072,000.00 were damaged.&nbsp;
Plaintiff invited Food and Drugs Board to come and witness the disposal
of the damage products and they were destroyed by Accra Metropolitan Assembly. <o:p></o:p>Plaintiff put in a claim
for compensation under policy No. 01F58 for the pharmaceutical products and the
warehouse under policy No. GH134J50004.&nbsp;
Defendant admitted liability and paid compensation for the
warehouse.&nbsp; Defendant however refused to
accept any liability for the pharmaceutical products inspite of the
recommendation of the National Insurance Commission to pay.&nbsp; On 19/10/05, the plaintiff brought this
action for: <o:p></o:p>1.&nbsp; An order directed against the defendant to
pay to the plaintiff a claim of ¢2,370,072,000.00 being the value of
goods/property destroyed by fire under policy No. F.GH/032/J002/CDHI/F/01/30049
(01F58). <o:p></o:p>2.&nbsp; To pay on the claimed sum owing to the
plaintiff an interest at the current bank rate with effect from 15/07/04 until
the date when the claim is fully settled. <o:p></o:p>3.&nbsp; Cost <o:p></o:p>The defendant based her
refusal to accept liability for damage to the pharmaceutical products on the
terms or provisions of the insurance policy No. 01F58.&nbsp; Under the policy, the location of the
pharmaceutical products was at H/No. MA 222/12, Mile 7, Alhaji-Accra and not
H/No. NOSO/B/1619, Sowutuom which she was not aware of.&nbsp; In any case under the policy, it was
plaintiff’s duty to ensure that any relocation of the products was evidenced by
an endorsement on the policy.&nbsp; This duty
plaintiff has neglected or failed to carry out.&nbsp;
According to defendant, it is not the duty of the agent to conduct
inspection of a property for purposes of insurance but that of an
underwriter.&nbsp; So the inspection done by
the agent was of no effect. <o:p></o:p>Again the defendant
asserted that proposals for insurance are never taken verbally as plaintiff
alleged she had done.&nbsp; Further under the
terms of the policy, the plaintiff had failed to protect the insured stock from
loss and damage and to salvage any loss occasioned by the fire outbreak.&nbsp; The defendant also contended that the
remaining stock was not destroyed on the advice of the Food and Drugs Board but
at the request of the plaintiff, yet under the policy the defendant became the
owner of whatever is left of the stock and for that matter must authorize its
disposal or destruction.&nbsp; Thereon
defendant counter-claimed for: <o:p></o:p>(i)&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;
Administrative expenses and legal fees in
defending this claim. <o:p></o:p>