GUARDIAN ASSURANCE CO., LTD. v. KHAYAT TRADING STORE

JUDGMENT OF AMISSAH J.A.

This is an appeal from a judgment of Anterkyi J. which awarded Messrs. Khayat Trading Store (hereafter described as the respondents) the sum of ¢18,000 plus costs of ¢1,800 on their claim for the loss of goods from their store through theft. The thieves apparently broke into that store on 21 September 1967, and removed therefrom a quantity of textiles and other goods including the furniture in it. Two days earlier, that is on 19 September 1967, the respondents had insured the goods in the store with Messrs. Guardian Assurance Co., Ltd., the appellants, for N¢20,000. The appellants' liability, if any, therefore arises from the insurance policy.

By a letter dated 26 September 1967, the appellants wrote to the respondents telling them that the policy was void because the respondents had made material misrepresentations in the proposals for the insurance cover, and at the trial the appellants resisted the claim on this ground. The trial judge, however, found against them and awarded the amounts mentioned earlier to the respondents.

The appellants now appeal to us against this judgment on the following grounds:

"(1) The judgment cannot be supported having regard to the evidence led at the trial.

[p.51]

(2) The learned trial judge failed to give any or any adequate consideration to facts relied upon by the defendants in their defence and admitted by the plaintiffs under cross-examination.

(3) The learned trial judge was wrong in law in holding that the plaintiffs had proved their loss.

(4) The costs awarded are unreasonable and excessive."

Grounds (1) and (2) were taken together in the argument of the appeal. The complaint therein was in respect of the appellants' allegation that the respondents had misrepre- sented material facts in the proposal form which entitled them, that is the appellants, to avoid the policy. At the trial, the learned judge had taken the view that there had been no misrepresentation. He believed the respondents' principal witness, a partner in the firm, who had said that he made a full and frank disclosure on the questions asked on the proposal form to the appellants' agent, one Zwennes, and that it was Zwennes who wrote or caused the answers to be written down. Any misrepresentation therefore was the handiwork not of the respondents but of the appellants' agent for whom the appellants should be held fully responsible. In attacking the trial judge's conclusion, the appellants argued that he failed to ta