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R.E.A.N. v. Anumnu

ROYAL EXCHANGE ASSURANCE (NIG.) PLC.

V

MICHAEL O. ANUMNU

COURT OF APPEAL

( JOS DIVISION )

OLUDADE OLADAPO OBADINA, JCA ( Presided )

AMIRU SANUSI, JCA

IFEYINWA CECILIA NZEAKO, JCA ( Read the Lead Judgment )

CA/J/81/2000

MONDAY, 9TH DECEMBER, 2002

APPEAL - Appeal against interlocutory and final decisions - Conditions necessary for merging both - Need to obtain leave of court to appeal on the interlocutory decision - A.C.B. Ltd. vs. Awogboro revisited

APPEAL - Evaluation of evidence and making findings of fact - Powers of appellate court where trial court fails to so do

APPEAL - Interlocutory decision - Options open to a party desirous of appealing against - Option to either appeal with leave of court within fourteen (14) days or await the final decision of court and merge it with an appeal on the final decision

APPEAL - Interlocutory decisions of High Court - Need for leave of court to appeal against

APPEAL - Issues for determination in complaint against judgment of court - Whether only issues properly canvassed and determined in the judgment can be complained of

APPEAL - Leave of court to appeal - Failure to obtain where necessary

-  Effect

CONSTITUTION - Constitution (Suspension and Modification) Decree No. 107 of 1993 - Whether amends, modify or add to exclusive jurisdiction already conferred on Federal High Court

COURT - Impropriety of court speculating on evidence

COURT - Issues for determination - Need to limit to issues raised by parties

COURT - Issues submitted for adjudication - Duty of court to make findings of fact where there is evidence to establish a point in issue

DAMAGES - Special damages - Onus of proof - How discharged

DAMAGES - Special damages - Requirement of specific pleading and proof of - Essence of - Duty of court to peruse pleadings to determine if there are sufficient facts available to defendant to meet the claim

DOCUMENT - Cancellation of entry on document - Effect of - Obliteration of such entry and a deeming of same as discarded

EVIDENCE - Fraud - Proof - Need for specific pleading and proof of

EVIDENCE - Proof - Onus of proof of averment - On whom lies

EVIDENCE - Special damages - Onus of proof of - How discharged

EVIDENCE - Speculation on evidence by court - Impropriety of

INSURANCE LAW - ‘Average clause’ - Effect

INSURANCE LAW - Insurance of collateral - Clause on bank’s liability to pay premium from mortgagor’s account - Subsequent liquidation of debt - Whether bank’s liability continues

INSURANCE LAW - Jurisdiction on insurance matters - Federal High

Court - Whether possessed of exclusive jurisdiction of State High Court - Constitution (Suspension and Modification) Decree No. 107  of 1993, and Federal High Court Act 1973, section 7(1), as amended by Federal High Court (Amendment) Decree 60 of 1991 considered

JUDGMENT AND ORDERS - Appeal against -  Whether only issues properly canvassed and determined can be complained of

JUDGMENT AND ORDERS - Errors - When will lead to reversal of judgment

JURISDICTION - Federal High Court - Exclusive jurisdiction conferred by the Constitution (Suspension and Modification) Decree No. 107  of 1993 - Whether addition to that conferred by section  7(1) of the Federal High Court Act, 1973 as amended by section 2, Federal High Court (Amendment) Decree 60 of 1991

JURISDICTION - Issue of - When can be raised - Raising the issue of jurisdiction for the first time on appeal - Need for leave of court

MORTGAGE - Insurance of collateral - Clause on bank’s liability to pay premium from mortgagor’s account - Subsequent liquidation of debt - Whether bank’s liability continues

PLEADINGS - Special damages - Requirement of specific pleading and proof of - Essence of - Duty of court to peruse pleadings to determine if there are sufficient facts available to defendant to meet the claim

PRACTICE AND PROCEDURE - Issues joined by parties - Duty of court to make findings of fact where there is evidence to establish a point in issue

PRACTICE AND PROCEDURE - Pleadings - Special damages Requirement of specific pleading and proof of  Essence of Duty of court to peruse pleadings to determine if there are sufficient facts available to defendant to meet the claim

STATUTE - Constitution (Suspension and Modification) Decree No. 107  of 1993 viz-a-viz Federal High Court Act, 1973 section  7(1) as amended by Federal High Court (Amendment) Decree No. 60 of 1991 - Whether exclusive jurisdiction conferred on Federal High Court an addition and a modification or amendment

STATUTE - Repeal of statutes by implication - Attitude of court to -

When courts will imply repeal

WORDS AND PHRASES - ‘Average clause’ in insurance transaction Effect

Issues:

1.              Whether having regard to Decree 60 of 1991 and Decree 107 of 1993, the Bauchi State High Court had jurisdiction to entertain the plaintiff/respondent’s case it being an insurance claim.

2.              Whether what was insured was the interest of the respondent or the mortgaged interest of Union Bank of Nigeria Plc.

3.              Whether the learned trial Judge was not in error in failing to hold that the respondent’s property was underinsured with the result that he failed to apply the average clause in the insurance contract in issue in the case.

4.              Whether the learned trial Judge was not in error in finding that the respondent paid premium in advance in respect of policy No. 734B/R41197C when there were two policy numbers on the receipt pursuant to which he so held and no attempt was made to explain why a different policy number had been written on the receipt and cancelled.

5.              Whether the respondent had proved the damages claimed by him.

6.              Whether the learned trial Judge applied the law relating to contracts of indemnity in awarding damages in this case.

Facts:

Pursuant to a mortgage agreement with the Union Bank of Nigeria Plc., the respondent insured his property situate at No. 2 Gawo Road, GRA, Bauchi against tornado, storm, earthquake and other calamities with the appellant. On the 15th of June, 1994, the insured property was damaged by tornado and flood. The respondent called on the appellant to, in accordance with the insurance contract, repair the premises. When the appellant neglected/ delayed in effecting repairs on the property, the respondent carried out the repairs. There was a disagreement between the parties on the extent of the property covered by the insurance and the amount payable for the damage. Consequently, the respondent filed a suit at the High Court of Justice, Bauchi, Bauchi State of Nigeria claiming special damages and general damages. During the pendency of the suit the appellant challenged the jurisdiction of the High Court Bauchi to adjudicate on the matter, being one predicated on a contract of insurance. The learned trial Judge overruled the objection. The appellant did not appeal against the ruling.

At the conclusion of trial, the respondent was awarded special and general damages. The issue of jurisdiction was not raised again neither was same referred to in the final judgment of court.

Dissatisfied, the appellant appealed to the Court of Appeal. Included in its grounds of appeal was the objection to the jurisdiction of the State High Court. Issue No. 1 for determination was based on this. No leave of court to appeal was sought. The respondent raised a preliminary objection to this contending inter alia that the challenge of the trial court’s jurisdiction in the present appeal was obviously an appeal against the interlocutory decision of the High Court for which leave of court must be obtained. The appellant having failed to do this, he contended, the ground of appeal on jurisdiction and issue distilled therefrom is incompetent. The preliminary objection was taken together with the main appeal.