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FODWOO v. NORTHERN ASSURANCE CO. LTD


  • New
  • 1962-04-30
  • HIGH COURT
  • 1 GLR 296-299
  • Print

OLLENNU J.


Summary

Insurance?-Burglary policy?-Assured "suspects" his night watchman?-Whether theft occasioned by watchman.Insurance?-Burglary policy?-Quantum of damages.

Headnotes

On the 22nd September, 1956, the plaintiff insured the goods in his shop for G2,800 against burglary. Between the night of Saturday the 27th February, 1960, and the morning of Monday the 29th February, 1960, the shop was broken into and a quantity of goods stolen therefrom. The plaintiff's night watchman also vanished and could not be traced, even by the police. The plaintiff stated in his claim form that he suspected his night watchman of the theft. The policy contained a clause that the defendants "shall not be liable for any loss or damage occasioned by any of the insured's ... business staff . .". Clause 13 stipulated that any claim should be brought within 12 months of the theft otherwise the claim will be deemed abandoned. There was also the usual arbitration clause.The defendants resisted the plaintiff 's claim on a number of grounds, principally that (a) there was no burglary as alleged; (b) as the plaintiff has confessed that he suspects his watchman, they are relieved under the exemption clause; (c) the action is premature in view of the arbitration clause; (d) the suit is out of time having been commenced on the 6th December, 1961, well over twelve months after the burglary; and (e) the plaintiff has not proved his loss.

Judgement

ACTION on a burglary policy.

The plaintiff, a trader of Swedru, insured the goods in his shop with the defendant ?- Company against theft through burglary or house-breaking for the sum of G2,800. He took the policy on the 22nd September, 1956, and paid the annual premium of G14 regularly. The insured shop was broken into between the night of Saturday, the 27th and the morning of Monday, the 29th February, 1960. In consequence of the said theft, the plaintiff submitted a claim for G2,800, the full amount for which his goods were insured. The defendants repudiated liability, in consequence whereof the plaintiff instituted this action claiming G2,800 as part of the loss he has suffered in consequence of the said burglary and theft.

The defendant-company denied liability on the following grounds:

(1) that there has been no burglary and theft of the plaintiff 's goods as alleged;

(2) the plaintiff had alleged that the theft was committed by his watchman, and therefore the company is relieved from liability by reason of clause (a) of the General Exemptions under the policy;

(3) they, the defendants, are exempted from liability by reason of a false declaration which the plaintiff made on his claim form;

(4) the plaintiff has not suffered any loss;

(5) the claim should first have been submitted to arbitration; and

(6) the action was taken more than twelve months after the theft.

On the first issue as to whether or not the plaintiff 's shop was broken into and goods stolen therefrom, it should be pointed out that the evidence led in that behalf by the plaintiff was not seriously challenged. On the contrary, exhibit 2, the police report produced by the defence, tends to confirm the plaintiff's case that his shop was broken into and his goods stolen. I accept the plaintiff's evidence that his shop was broken into and goods stolen therefrom.

In exhibit 1, the burglary claim form submitted by him soon after the theft, the plaintiff, in answer to question 5 thereon which reads:

"Do your suspicions rest upon anyone? If so whom?", replied: "Yes Mama Moshie, my night-watchman". It was submitted for the defendant-company that those answers given by the plaintiff exempted them from liability. Counsel cited West Wake Price Co. v. Ching1 in support.

The General Exemptions clause (a) reads:

"The Company shall not be liable for any loss or damage:

(a) Occasioned by any of the Insured's family, business staff or domestic servants, or any person lawfully on the premises".

The operative words governing the different categories of persons are "occasioned by". In this context I interpret those words "occasioned by " to mean caused by, resulting from act done by, omission made by any of those persons to do what he ought to do. Upon that interpretation, unless it is shown or proved that any relation, employee, or licensee of the assured on the premises, committed the burglary and theft, or made it possible for another person or persons to commit the said offence, the damage or loss which would result from the commission of the offence cannot be said to have been occasioned by such relation, servant or licensee, and the insurance company will not be exempted from liability. In this case the plaintiff's answer to question 5 of the claim form exhibit 1, that he suspected his watchman of the burglary and theft is not proof, not even a bold assertion, that the offence was committed by the watchman, or that its commission was in any way facilitated by the watchman. The police report exhibit 2 correctly described the situation when it said: "Enquiries made by police were not successful in tracing him (the watchman) for interrogation in respect of the theft, and it is not known how far he could be connected with it". The disappearance of the watchman soon after the theft raises mere suspicion; no definite conclusion can be drawn from it. There can be more than one conclusion to be drawn. There is, therefore, no proof that the loss was occasioned by the watchman. Consequently the loss or damage in this case is not exempted from the defendants' liability.

Although the defendants, as the third ground for repudiating liability, alleged that the plaintiff made a false declaration in the claim form exhibit 1, they failed to give particulars of the said false declaration. But from the evidence they led, it appears that their complaint is about the plaintiff's statement on the said exhibit 1, that he left a watchman on the premises when he closed business in the evening of the 27th February, 1960. If that is so, then the defendants are being inconsistent. On the one hand, they say that there was a watchman on the premises, who is suspected of committing the burglary, whilst on the other they are saying that the plaintiff has told them at an interview in the presence of the bank manager and a bank official that he had no watchman. There is no substance in that objection.

As far as the arbitration clause is concerned, the defendants did nothing more beyond pleading it, and no arguments were advanced by them on it. Having taken full part in the proceedings on the merits, the defendants cannot now be heard to claim the benefit of the arbitration clause.

The most important issue left in the case is the loss, if any, which the plaintiff has suffered; for even if the burglary is proved satisfactorily and all the conditions of the policy properly complied with, the only amount the court can award under the policy is the actual amount of loss suffered by the assured, or if the loss exceeded the amount for which his goods were insured, then the amount for which he was insured.

In this case the plaintiff said he suffered a total loss of G3,358 17s. 10d. and therefore he claimed G2,800 the amount for which he was insured. Asked how he arrived at the loss of G3,358 17s. 10d. he replied:

?"I said that the loss I suffered was G3,358 17s. 10d. because I insured the goods for G2,800 and on the Saturday morning the bank gave me G350 which I used to buy goods, and a store at Swedru called Ambassador Store gave me goods on credit to the value of G1,000 12s. 6d. I added those three figures up and had the G3,358 17s. 10d."

This evidence does not prove loss. There is no evidence as to what stock the plaintiff had at his last stock-taking, of sales and disposals he made and what additional stock he took in between the date of the last stock-taking and the date of the theft, and the stock which was left in the shop after the burglary. Therefore there is no means of knowing the loss, if any, which the plaintiff suffered. The court therefore cannot make an award of an arbitrary sum in his favour.

Again the burglary occurred in February 1960, and this suit was not commenced until the 6th December, 1961, more than twelve months after the loss. No reasons have been given for that long delay in bringing the action. The claim therefore is not maintainable, it being considered under clause 13 of the policy, exhibit A, as abandoned.

In all the circumstances, the plaintiff's or claim must fail. The plaintiff's claim is dismissed and judgment entered thereon for the defendants with nominal costs of 10 guineas.

Decision


Plaintiff / Appellant

J. K. Tawiah for G. D. Ampaw

Defendant / Respondent

E. D. Kom

Referals

West Wake Price & Co. v. Ching [1956] 3 All E.R. 821
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