GUARDIAN ASSURANCE CO., LTD. v. KHAYAT TRADING STORE
March 20, 1972
COURT OF APPEAL
CORAM
- AMISSAH
- ARCHER JJ.A.
- AZU CRABBE J.S.C
Areas of Law
- Insurance Law
- Contract Law
- Evidence Law
March 20, 1972
COURT OF APPEAL
CORAM
AI Generated Summary
Guardian Assurance Co., Ltd. appealed a judgment by Anterkyi J. awarding Khayat Trading Store 18,000 and 1,800 costs after a burglary on 21 September 1967. Two days earlier, the respondents insured the stores goods for N20,000. The insurer denied liability, asserting material misrepresentations in the proposal regarding the total stock value and prior burglaries or claims. The Court of Appeal, per Amissah J.A., criticized the trial judges handling of the evidence and accepted that incorrect answers appeared in the proposal, including stating 20,000 as total stock despite over 30,000 in stock and denying a prior break-in and compensation from Gresham. Applying Newsholme Brothers and related authorities, the court held the agent completing the proposal acted for the proposer; his knowledge was not imputed to the insurer. Because the proposal and declaration were the basis of the contract, accuracy was a condition, making materiality irrelevant. The court allowed the appeal and found the costs award unjustifiable.
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