certificate of insurance in terms of referring to "usual policy"

Today's case on Nigerian Insurance Court Cases:

ISSUES:
Insurance, certificate of insurance in terms of referring to "usual policy" and being made subject to it, whether the fact that insured did not receive a copy of the policy is valid ground for saying that he was not bound by terms of the policy so referred to, doctrine of incorporation by reference, breach of condition precedent, onus of proof. 

The northern insurance company limited -Plaintiff  
A Wuraola -Defandant
 
Suit at the supreme court of Nigeria on 10th January, 1969 before;
•Ademola CJN
•Coker JSC
•Madarikan JSC  

COUNSEL:
•K Sofola for the appellants
•Chief FRA Williams (with MB Carew) for the respondents
 
FACTS:
At the high court, the respondent succeeded in an insurance claim she brought against the appellant on the basis (as the high court found) that she could not be bound by the terms of the policy since she. Did not receive a copy of it at the time she obtained the certificate of insurance. The certificate of insurance however in terms expressly stated that it was issued subject to the terms of the respondent "company's usual form of policy" a copy of which was tendered during the proceedings.
 
On appeal to the supreme court against the decision of the high court, it was contended for the appellant/company that in as much as the certificate referred to the usual policy, the respondent was bound by it, and that the issue concerning her receipt or otherwise of the insurance policy was immaterial. It was further argued that the appellant/company that since the respondent did not comply with the provisions of the insurance policy she was not entitled to judgment.
 
HELD:

1. In the construction of judgments, the primary rule is that effects should be given to literal contents in their ordinary way as they appear on the document and that anything which does not appear ex facie on such documents should not be imported into them.
 
2. On the others hand however, the principle of incorporation by reference is one that is frequently applied into construction of documents, including contracts of insurance where from the documents which were produced by both parties it was clear that some other evidence must have been in the contemplation of the parties. In such cases the principle is that the document put forward compel the court to look beyond them and ascertain precisely by other evidence which by necessary implication the parties must have had in their minds at the time of the contract.
 
3. The documents put in issue in this case and the evidence given upon both parties point unequivocally to the existence as between them of a policy of insurance and in the construction of the documents before the court, the policy of insurance must be deemed to have been incorporated by reference as being a document which was in the contemplation of both parties as forming part of the contact into which they entered.
 
4. Therefore the pertinent question in this case is whether the plaintiff is bound by the terms and conditions of the insurance policy and certainly not whether or not he had a copy of that policy and the question is answered in the affirmative.
 
5. The breach of condition precedent is a matter which as in all cases of contract must be proved by the party who will stand to benefit from the occurrence of that breach.
 
6. In this case the respondent was guilty of breach of a condition precedent to a successful claim under the insurance policy having failed to report the accident as required by the policy. Appeal is allowed, plaintiffs/respondent's claim dismissed.
 
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