Attitude to concurrent findings to lower courts

Today's case on Nigerian Insurance Court Cases blog:
BRIEF;
Supreme court; Attitude to concurrent findings to lower courts, unchallenged evidence of a party, duty of the trial court to act thereon, what constitutes the concurrent findings of two courts, meaning of "claim" in the context of this case.


•Lead way insurance company limited -Appellant
•Zeco Nigeria Limited -Respondent

Suit SC/4/2000 in Abuja at the Supreme court of Nigeria, on friday 16th April, 2004 before;
•Idris Legbo Kutigi JSC
•Aloysius Iyorgyer Katsina-Alu JSC
•Samson Odemwingie Uwaifo JSC
•Akintola Olufemi Ejiwunmi JSC
•Dahiru Musdapher JSC

COUNSEL;
•B Aluko-Olokun, Olu Ibitoye Esq for the appelant.
•Etigwe Uwa Esq, Bamaiye Chambers for the respondent.

ISSUES;
1. Whether it is proper in this to consider the issue whether the plaintiff reported the claim to the defendant orally within the 21 days required by the contract of insurance and in utilizing his findings thereon when that issue did not arise from the pleadings.

2. Whether evidence aimed at showing a proper report of claim was made orally by the plaintiff to the defendant was properly admitted in evidence when no fact relating to that issue was pleaded.

FACTS:
The plaintiff's claim against the defendant at the federal high court Kaduna was in the following terms;

1. DM 111,638 SO Deutsche Mark or N6,698,280 its naira equivalent at the current exchange rate of N60 to 1DM being the value of the goods insured with the defendant but not delivered to the plaintiff.

2. N150,000 being the amount the plaintiff paid for clearance and import duties for the goods imported and insured with the defendant.

3. N2,000,000 being general damages for the embarrassment and loss of business due to non payment by the plaintiff to the manufacturers for the goods supplied occasioned by the refusal of the defendants to pay the plaintiff which led to an almost total business collapse of the plaintiff.

4. DM41045.48 being the value of goods packing and sea freight as per invoice members 26824, 26825 and 96296.

The main defense of the defendant was that no report of the alleged loss of goods insured was made to it within 21 days of the discharge of the goods from the ship as required by the contract of insurance. The learned trial judge found that an oral report of the loss was mad by the plaintiff to the defendant within the stipulated period and thereupon entered judgment in favor or the plaintiff for the sum of N5,542,641.54

The defendant's appeal to the court of appeal was dismissed. The defendant has further appealed to the supreme court.

HELD:
A. On what constitutes concurrent findings of two courts;

It can be seen that the trial court and the court of appeal have found as an act of the plaintiff reported the loss of its good to the defendants within the 21 days period stipulated in the contract of insurance. In other words, both findings of the two courts below constitute concurrent findings of the fact. The two courts below have held that the evidence presented by the plaintiff in this regard was unchallenged and uncontroverted - IA Katsina Alu JSC

B. On unchallenged evidence by a party-duty of a trial court to act thereon;

The law in this regard is settled, where evidence given by a party to any proceedings was no challenged to the opposite party who had opportunity to do so, the court of trial has a duty to act upon the unchallenged evidence before it. In this instant case, it was open to the trial judge to act on the unchallenged and uncontradicted evidence that the plaintiff reported its loss to the defendant within 21 days as provided by their contract of insurance and accept it as a true version of the case the plaintiff sought to support - IA Katsina Alu JSC

C. On the attitude of the supreme court to concurrent finding of facts by two courts;

This court has held times without number that it will not disturb concurrent findings by the two courts below unless they are shown to be perverse - IA Katsina Alu JSC

D. On the meaning of the "clan" in the context of this case;

In terpreting section 6 subsection 1b of the administration of justice (miscellaneous provisions) act, 1993 which talked of "a claim in repsect of libel, slander, malicious persecution, false imprisonment, seduction or breach of promise or marriage" Pearce LJ said "a claim" in that subsection means the assertion of a cause of action. The oral report the respondent made within 21 days, was in my view, a claim to assert a cause of action arising from the loss of its goods which was discovered when the vessel in question birthed. I do not think "claim" there means presenting that the stage at the amount of damages intended to be claimed as may be required in a relief of reliefs sought in a probable litigation.

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