IN THE SUPERIOR COURT OF JUDICATURE
IN THE COURT OF APPEAL
ACCRA - A.D 2018
EQUITY ASSURANCE - (Plaintiff/Respondent)
PALMERS GREEN INTERNATIONAL LTD. - (Defendant/Appellant)
DATE: 25 TH OCTOBER, 2018
SUIT NO: H1/190/2018
JUDGES: KUSI-APPIAH J.A, HONYENUGA J.A , ADJEI J.A
KWASI BLAY WITH HIM KWAKU ADU MINTAH ESQ. AND EMMANUEL KUMI ESQ. FOR PLAINTIFF/RESPONDENT
PAUL OPOKU ESQ. WITH HIM DANIEL OSEI ESQ. FOR DEFENDANT/ APPELLANT
This Defendant/Appellant dissatisfied with the judgment of the High Court, Accra delivered on 24th March, 2016 filed an appeal against same to this Court on 17th May, 2016.For the purposes of this appeal, the Defendant/Appellant shall be referred to as Defendant and the Plaintiff/Respondent as Plaintiff.
The Plaintiff sued the Defendant to recover the sum of USD 64,309.68 and 7,508.56 Euro being premium due on six different insurance policies underwritten by the Plaintiff for the Defendant which the Defendant has refused to pay despite repeated demands. The trial High Court Judge in her judgment delivered on 24th March, 2016 entered judgment for the Plaintiff on the endorsement on the writ. The basis for the Plaintiff’s claim was that by the practice between it and the Defendant, it automatically renewed the insurance policies for its private comprehensive Motor Policy and the Defendant was required to honour its part by paying for the policies renewed for its benefit. The Defendant’s position is that insurance policy has its own practice and regulation and where an insurance policy expires and renewed, the cost of the policy shall be paid within ninety days from the date of renewal else it shall lapse.
The trial High Court Judge believed the version of the Plaintiff on the balance of preponderance of probabilities and entered judgment for the Plaintiff.
The following were the grounds of appeal filed by the Defendant against the judgment:
“a. The whole judgment is against the weight of evidence.
b. The judge erred when she concluded and indeed same informed her decision, that the Defendant did not deny paragraph 4 of the Statement of Claim in his Defence when indeed and in fat paragraph 1 of the Defence has expressly stated that unless admitted, any fact contained in the Statement of Defence is denied seriatim.
c. The court erred when it concluded that the Appellants’ request for a bid bond is conclusive of the fact that the parties transacted business beyond 2011 and hence the Appellant is liable to the claim of the Respondent.
d. The Judge erred when she held that the Appellant is liable to the claim of UDS$ 64,309.68 and for 7,508.56 when same was never proven by the Respondent.
e. The learned Judge erred when she held that goodwill amongst the parties varied the express terms in the insurance policy that binds the parties.
f. The learned trial Judge with all due respect erred when she failed to adequately consider the case of the Defendant who did not have a counterclaim.
g. The learned Judge erred when she held the appellant to the sum claimed by the Respondent in the face of the Respondent’s own admission to the National Insurance Commission that the indebtedness of the Appellants was GH¢41,016.96 and not more
h. The learned Judge erred, when she gave a clean bill automatic renewal when indeed and in fact none policy of the parties.
of health to the Plaintiff’s case of existed in the binding insurance
i. Further grounds of appeal may be filed upon receipt of the Record of Proceedings”.
We address ground (a) of the appeal which confers jurisdiction on an appellate court to exercise its corrective powers over a judgment of the Court below. The omnibus ground of appeal that the judgment is against the weight of evidence on record clothes an appellate court such as this Court to evaluate all the evidence on record and correct all the errors made by the Court below.
This Court is required under the omnibus ground of appeal to correct all errors committed by the High Court in the evaluation of the evidence on record, evaluate evidence which were not evaluated but are on record, correct all the errors found and apply the proper laws both statutory and case law including the standard of proof and burden of proof. The duties imposed on an appellate court as an error correcting court whenever the omnibus ground of appeal is raised have been discussed in cases including Djin v Baako[2007-2008] SCGLR 680, Oppong Kofi & Others v Attribrukusu III  1 SCGLR 176 and Tuakwa v Bosom[2001-2002] SCGLR 61 and has become a trite law. The Defendant’s position is that it engaged the Plaintiff to underwrite insurance policy for the period 2010-2011 and did not authorize the Plaintiff to extend the policy to 2011, 2012 and beyond. The
Defendant supported its case with exhibits ‘1’ and ‘2’. The inception date for exhibit ‘1’ is 8th September, 2010 and expired on 7th September, 2010. The inception date for exhibit ‘2’ is 30th September, 2010 and expired on 29th September, 2011. The Plaintiff on the other hand insisted that it underwrote insurance policies for the Defendant for the years including 2011, 2012 and 2013 and tendered exhibits to support it including exhibits ‘c’ which shows the effective date of cover for policy No. CVO 741/1/ 1000109/G12 as 20th September, 2012 and expired on 10th July, 2013. The Insurance car stickers issued in 2012 and expired in 2013 were also exhibited.
Some of the Defendants vehicles having the Plaintiff’s car Stickers for the period of 2012 to 2013 were also exhibited. The Defendant did not deny that the Equity Stickers (the Plaintiff’s Company’s stickers) were on its vehicles during the 2011-2013 period; the period in dispute. We have examined exhibit ‘C’ and its series as well as exhibit ‘D’ and we are satisfied that in 2012-2013 period the Defendant’s vehicles had the Plaintiff’s car stickers. We further find that within the period of 2012-2013 the Plaintiff issued ECOWAS Brown Card stickers to the Defendant. They were tendered as exhibit ‘E’ and found in page 288 of the record of appeal.
They were issued on 20th September, 2012 to expire on 10th July,2013. We are satisfied that the Plaintiff’s claim is more probable than that of the Defendant. The law requires the plaintiff to prove its case on the preponderance of probabilities and we are satisfied that the Plaintiff proved to the satisfaction of the Court that it transacted with the Defendant between 2012-2013 and issued its insurance car stickers to the Defendant and were found on the windscreen of the Defendant’s said vehicles/cars.
Section 11(4) and 12 of the Evidence Act NRCD 323 require a plaintiff in civil matter to prove his case on the preponderance of probabilities. Based on section 11(4) and 12 of the Evidence Act, NRCD 323 the Supreme Court in the case of Adwubeng v Domfeh [1996-97] SCGLR 660 held that standard of proof in all civil actions was proof by preponderance of probabilities and there is no exception to the rule. We have examined the evidence of the parties and the exhibits tendered by them and we are of the considered opinion that the Plaintiff’s evidence with respect to the underwritings made on behalf of the Defendant in 2012-2013 period is more probable than the Defendant’s case which is an absolute denial. Premising our decision on sections 11(4) and 12 of the Evidence Act we hold that on the preponderance of probabilities, the Plaintiff’s evidence on the insurance policy underwritten by the Plaintiff for the benefit of the Defendant during the 2012-2013 period is more probable than not in terms of Sections 11(4) and 12 of the Evidence Act and we affirm the findings of fact by the trial High Court on the subject.
The Defendant’s position was that it did not instruct the Plaintiff to renew the policies after their effluxion while the Plaintiff held a contrary view. The Defendant further stated that it was part of the agreement that whenever payment of premium on insurance policy went into arrears for nine months, the policy automatically cancelled on grounds of non-payment. We have examined the record of appeal and we have not come across any instance where a policy automatically revoked for non-payment of premium. The Defendant also could not satisfy the court that the 90 days automatic policy regulated their transaction and when the premium became due and was not paid within the ninety days it paid fifty percent pro-rated.
Renewal of policy in insurance is a term-of-art and has a dual meaning. The first meaning is an extension granted after the expiration of the original policy period by the exercise given to one party (which is almost always the assured) by the contract to extend the term of the policy without any further authorization from the other. The second meaning is where a new contract is entered into by the parties upon the expiration of the original policy. The evidence on record shows that the Defendant authorize the Plaintiff to extend the term of the policy after its expiration without any formal authorization. Chitty on Contracts, Volume 2; Specific Contract; published by Sweet & Maxwell, 1999 at page 1005 explained the term “renewal” in insurance as follows:
“The term “renewal” is used to denote both the extension of the original period cover by the exercise of a right given to one party (almost invariably the assured)by the contract to extend the period of the cover without the assent of the other and the making of a new contract through the agreement of both. It is important to distinguish the two types of renewal, since only in the former case will vitiating elements in the original contract, such as failure to make full disclosure, affect the extension, and conversely only in the latter case will a duty arise to make full disclosure at the time of the renewal”.
The evidence on record supports the first meaning of renewal where the Plaintiff extends the policy after its expiration without the consent of the Defendant and the Defendant went for the policy stickers and placed them on the windscreens of the respective cars/vehicles. We are of the considered opinion that the findings of fact made by the trial High Court Judge with respect to the nature of the contract that the policy was entered to 2012-2013 and the Defendant benefited from it. Furthermore, we find based on the Defendant’s own exhibit ‘1’ that even though the policy was made in September, 2010 with respect to an amount of $4,452.76, the premium remained in arrears until 15th June 2012 when the Defendant issued a cheque to pay for same. Having resolved ground ‘1’ of the appeal, grounds ‘d’ ‘e’ ‘f’ ‘g’ and h’ of the appeal have also been resolved.
The Defendant in his ground ‘c’ of the appeal alleged that the trial High Court Judge erred in law by concluding that the Defendant’s request for a bid bond is conclusive of the fact that the parties transacted business beyond 2011 and the Defendant was liable to the Plaintiff’s claim. We are of the opinion that the Defendant misunderstood the statement made by the trial High Court Judge in respect of the bid bond. The Judge stated thus:
“In my judgment, the fact that Defendant applied for the bid bond at a time when the parties were discussing the outstanding amount and the need for reconciliation shows the level of the relationship between the parties”.
The Defendant misquoted the trial High Court Judge and attributed to her finding of fact she had not made and we dismiss ground ‘c’ of the appeal as not borne out from the evidence on record. An appellate court is bound by the record of appeal before it and will not allow a party to complain about a thing which the does not form part of the record of appeal. We dismiss ground ‘c’ of the appeal as unmeritorious.
The ground ‘b’ of the appeal was that the trial High Court Judge erroneously concluded that the Defendant did not deny paragraph 4 of the Plaintiff’s statement of claim. A careful look at the Defendant’s statement of defence shows that it admitted paragraphs 1 and 2 of the statement of claim. The Defendant in its paragraph 1 of its statement of defence denied all the material averments contained in the Plaintiff’s statement of claim.
Order 11 rule 13 of the High Court (Civil Procedure) rules C.I. 47 is on admissions and denials. It provides thus:
“(1) Subject to subrule (4) of this rule, any allegation of fact made by a party in the party’s pleading shall be deemed to be admitted by the opposite party unless it is traversed by that party in pleading or a joinder of issue under rule 14 operates as a denial of it.
(2) A traverse may be made either by a denial or by a statement of non-admission and either expressly or by necessary implication”.
We hold that the finding by the trial High Court Judge that the Defendant did not deny the material allegations contained in paragraph 4 of the statement of claim is wrong. The Defendant denied it by necessary implication. The essence of general traverse is to economize pleadings by avoiding a situation where a defendant will be required to deny specifically every paragraph of the statement of claim. The appeal in respect of ground ‘b’ succeeds. However, there is ample evidence on record that the Plaintiff proved the averments contained in paragraph 4 of its statement of claim. Even though ground ‘b’ of the appeal succeeds its effect on the judgment is negligible and does not add any colour to the appeal as the Plaintiff proved the averments contained therein.
We therefore dismiss grounds ‘a’, ‘c’,‘d’, ‘e’, ‘f’ and ‘g’ of the appeal as unmeritorious. Ground ‘b’ of the appeal succeeds but its effect on the appeal is colourless.
We affirm the judgment of the trial High Court dated the 24th day of March, 2016.