VANGUARD ASSURANCE CO. LTD. vs. J. M. ADDO & SONS LTD. [2015]DLCA6766

Date	2015-05-07
Suit No.	CIVIL APPEAL NO: H1/66/2014
Citation No.	[2015]DLCA6766

P.K. GYAESAYOR J.A. (PRESIDING)

F. G. KORBIEH J.A.

S. DZAMEFE J.A.

A. BOAKYE FOR THE DEFENDANT/APPELLANT

EMMAUEL AMOFA FOR PLAINTIFF/RESPONDENT

[2015]DLCA6766
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													<main id="main" class="content" style="min-height: 60rem" >VANGUARD
ASSURANCE CO. LTD.<o:p></o:p>(DEFENDANT/APPELLANT)<o:p></o:p>vs.<o:p></o:p>J. M. ADDO
&amp; SONS LTD.<o:p></o:p>(PLAINTIFF/RESPONDENT)<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;
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<p class="MsoNormal" align="center" style="margin-bottom:0in;margin-bottom:.0001pt;
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padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">CIVIL
APPEAL NO: H1/66/2014&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; &nbsp; &nbsp;&nbsp;DATE: 7TH MAY, 2015<o:p></o:p>

<p class="MsoNormal" style="margin-bottom:0in;margin-bottom:.0001pt;text-align:
justify;line-height:115%;border:none;mso-border-bottom-alt:solid windowtext 1.5pt;
padding:0in;mso-padding-alt:0in 0in 1.0pt 0in">EMMAUEL AMOFA FOR
PLAINTIFF/RESPONDENT <o:p></o:p>

P.K. GYAESAYOR J.A. (PRESIDING), F. G.
KORBIEH J.A., S. DZAMEFE J.A.<o:p></o:p>

</div><o:p>&nbsp;</o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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</div>F.G.KORBIEH,
J.A. <o:p></o:p>The
facts leading to the suit and the judgment from which this appeal emanates are
relatively simply. The protagonists in this case entered into a contractual
relationship whereby the plaintiff/respondent (hereinafter only referred to as
the plaintiff) took out an Assets All Risks Insurance Policy with the
defendant/appellant (hereinafter only referred to as the defendant). The
plaintiff was at all material times a limited liability company engaged in the
business of importation, distribution and sale of pharmaceutical products
whilst the defendant was a limited liability company engaged in the business of
insurance and related activities. On the 11/11/2008, the plaintiff took out the
insurance policy in respect of the plaintiff’s assets including its warehouse
and the products contained therein. The warehouse in question was located at
Plot No. 17, Section 48, North Kaneshie, Accra and the products included a
quantity of Wormplex 400 Albendazole tablets. It was the practice of the
plaintiff to do stock-taking of its products every six months and it carried
out such an exercise on the 31/12/2009. It was during this stock-taking that
the plaintiff detected that 514 cartons of Wormplex 400 Albendazole tablets
valued at GHC514,000.00 were missing from the warehouse. The plaintiff lodged a
complaint with the police who, after several months of investigations, revealed
that the plaintiff’s warehouse had been broken into and the products stolen. In
or around January, 2010 the plaintiff’s insurance brokers made an oral report
of the lost items to the defendant and followed up with a written report on the
2/2/2010. On the basis of the lost items, the plaintiff lodged a claim with the
defendant but the latter repudiated liability, alleging that its own
investigations had revealed that there had been no forcible entry or exit from
the premises. After some more attempts on the part of the plaintiff to persuade
the defendant to accept liability for the claim failed, the plaintiff sued the
defendant claiming the cost of the lost items, interest thereon, aggravated
damages for breach of contract, any other reliefs the court deemed fit and
costs of the action. The defendant’s pleading in support of its denial of
liability was to the effect that the plaintiff would be put to strict proof of
most of its material allegations of fact and further that it was impossible for
theft through forcible entry to occur at the plaintiff’s warehouse which was
not discovered until more than eight months later. The defendant also pleaded
that it had repudiated liability in accordance with the terms and conditions of
the policy taken out by the plaintiff. The case went to trial and in its
judgment the trial court upheld the claim of the plaintiff and accordingly
granted most of the reliefs sought by the plaintiff. In her judgment, the
learned trial judge found as a fact that the plaintiff had imported 665 cartons
of Wormplex 400 Albendazole tablets which were stored in the plaintiff’s
warehouse. She also held that the exclusion clause in the policy document did
not apply to the plaintiff’s case as the clause did not serve the commercial
purpose for taking out the policy. She found as a fact that the plaintiff had
taken reasonable precaution to prevent the loss by the fact that it provided
the necessary security to the premises. She again found as a fact that the
entry into the premises of the plaintiff by a person or persons who had drilled
holes into the locks of the doors of the warehouse was not only forcible and
violent but was also unlawful. She further found that the repudiation of
liability by the defendant was wrongful. It is this judgment that the defendant
has appealed against on the following grounds: <o:p></o:p>1.
The judgment is against the weight of the evidence placed before the court. <o:p></o:p>2.
The trial judge failed to consider and properly evaluate the case of the
defendant/appellant. <o:p></o:p>3.
The trial judge erred in law by holding that the offer to pay ex-gratia made by
the defendant/appellant to the plaintiff/respondent amounted to an admission of
liability. <o:p></o:p>4.
The trial judge again erred in law by awarding general damages of GH¢20,000.00
to the plaintiff/respondent. <o:p></o:p>5.
The costs awarded in the whopping sum of GH¢7,000.00 is excessive, prohibitive
and without justification whatsoever. <o:p></o:p>