DANNY PRAISE COMPUTERS vs. SIC INSURANCE COMPANY LIMITED [2016]DLHC3771

Date	2016-06-29
Suit No.	SUIT NO.OCC/98/15
Citation No.	[2016]DLHC3771

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF THE HIGH COURT

KOFI ADDO FOR PLAINTIFF.

VICTOR WALENKAKI FOR DEFENDANT.

[2016]DLHC3771
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													<main id="main" class="content" style="min-height: 60rem" ><a name="OLE_LINK1">DANNY
PRAISE COMPUTERS<o:p></o:p></a>vs.<o:p></o:p>SIC INSURANCE COMPANY LIMITED<o:p></o:p>&nbsp;[HIGH COURT (COMMERCIAL DIVISION), KUMASI]<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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SUIT NO.OCC/98/15&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; &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: 29TH JUNE, 2016<o:p></o:p>

</div>COUNSEL:&nbsp;&nbsp; <o:p></o:p>KOFI
ADDO FOR PLAINTIFF.<o:p></o:p><div style="mso-element:para-border-div;border:none;border-bottom:solid windowtext 1.5pt;
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VICTOR WALENKAKI FOR DEFENDANT.<o:p></o:p>

ANGELINA MENSAH-HOMIAH (MRS.) JUSTICE OF
THE HIGH COURT<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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JUDGMENT<o:p></o:p>

</div>In this judgment, the court will among other things
consider the nature and legal effect of warranties and conditions in Insurance
Contracts as opposed to General Contracts. This case arose from a
misunderstanding and/ or misinterpretation of&nbsp;
certain conditions and endorsements in a burglary insurance&nbsp; policy as a result of which the insurer has
repudiated the claim. To begin with, I will like to draw the attention of the
disputants to a constructive observation made by the Supreme Court, speaking
through Apaloo C.J. in GHANA UNION
ASSURANCE CO., LTD. v. ASSAD FAKHRY AND SONS [1981] GLR 634. Perhaps, this statement will prepare the parties to better
appreciate their respective positions right from the onset. His Lordship
stated:<o:p></o:p>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; "There
is one observation we feel obliged to make. Formal written contracts of
insurance with their numerous conditions and endorsements are highly technical
legal documents hardly comprehensible to a layman. Experience shows that the
policies are normally received after agreement has been reached, premium paid
and after the insurance has validly come into operation. Often, the insured do
not trouble to read the actual policies when they eventually arrive. For this
reason, it is necessary that the stronger of the contracting parties, i.e. the
insurance companies should ensure that the actual policy conforms with what the
insured was led to believe. Otherwise, these policies will be no more than
pitfalls for the unwary"<o:p></o:p>To
what extent is the above observation relevant to the facts of the case at hand?
As the story unfolds, the court will make definitive findings of fact based on
the evidence adduced, apply the law and appropriate principles of&nbsp; insurance&nbsp;
and draw its conclusions.<o:p></o:p><o:p>&nbsp;</o:p>The
plaintiff describes itself as a limited liability company with branches in all
the regions of Ghana. The plaintiff took a burglary policy with the defendant,
a reputable insurance company&nbsp; in Ghana,
in respect of five business premises in Accra and Kumasi. These policies were
taken at the defendant's Kumasi office, renewed annually&nbsp; and all premiums were duly paid.<o:p></o:p>Its&nbsp; premises at Forico Shopping Mall, Osu, Accra
was burgled about midnight, on or about 29/12/2013 and 30/12/2013&nbsp; and numerous items as per the schedule
attached to the writ of summons were stolen by the burglars. The plaintiff
alleged that its night watchman was only absent from post for one night on&nbsp; grounds of ill-health without notice to&nbsp; the plaintiff company. The burglary occurred
during that period, the defendant was duly notified as required under the
policy and the total cost of goods stolen was assessed at approximately GH¢39,
232.00.<o:p></o:p>As
to be expected, the defendant repudiated the claim on the ground that the
plaintiff had violated clause (3) of the Burglary Insurance (Business Premises)
policy. The defendant contended that by the said policy, a night
watchman/caretaker was to be present on the premises continuously and at all
times when the premises are closed against customers and/or callers&nbsp; for business; and /or <o:p></o:p>outside
business hours.<o:p></o:p>The
Plaintiff&nbsp; has therefore instituted the
instant action for an order compelling the defendant to pay for the sum of
GH¢39,232.00 and interest thereon from 31/01/14 till date of payment.&nbsp; <o:p></o:p>The
main issue to be determined is whether the plaintiff breached the terms and
conditions of the insurance policy; and if so, whether the plaintiff is
entitled to its claim?<o:p></o:p>As
in all civil suits, it is the duty of a party whose positive assertions have
been denied by his opponent to prove same. The required standard of proof is
"proof by th</main>