GREAT (NIG) INSURANCE PLC v. ZEAL TRUST LTD (2021)

GREAT (NIG) INSURANCE PLC v. ZEAL TRUST LTD

(2021)LCN/15009(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, February 26, 2021

CA/L/270/2016

RATIO

INSURANCE: REQUIREMENT FOR AN INSURED TO BENEFIT FROM THE POLICY

The starting point to deciding this appeal is the provisions of the Insurance Act 2003 particularly Section 50 which is in the front burner of this appeal. I will herein reproduce Section 50 of the Insurance Act which provides thus:
“50 (1) The receipt of an insurance premium shall be a condition precedent to a valid contract of insurance and there shall be no cover in respect of an insurance risk, unless the premium paid in advance.
(2) An insurance premium collected by an insurance broker in respect of an insurance business transacted through the insurance broker shall be deemed to be premium paid to the insurer involved in the transaction.”
From the above section it is clear that for the insured to benefit from the policy, he must have paid the premium in advance evidenced by a receipt. PER EBIOWEI TOBI, J.C.A.

PRELIMINARY OBJECTION: CONSEQUENCE OF A SUCCESSFUL PRELIMINARY OBJECTION

This is so because should the preliminary objection succeeds there will be no need to consider the merit of the appeal. That is the consequence of a successful preliminary objection as the appeal will be terminated at that stage. This is why it is settled law that when preliminary objection is raised it should be considered first. See Petgas Resources Limited vs Louis Mbanefo (2017) 6 S.C. (pt v111) 49; Oteri Holdings Ltd vs Oluwa & Ors (2020) LPELR-52395 (SC); Alfa Saka Salami vs Alhaji Mohammed Jodi Magaji Muse Family (2019) LPELR-47038. PER EBIOWEI TOBI, J.C.A.

APPEAL: EFFECT OF AN INCOMPETENT NOTICE OF APPEAL

It is settled law that once a notice of appeal upon which the appeal is predicated is incompetent, there is no appeal and therefore the appeal will be struck out. See Prophet Sonibare & Anor vs Saka Imolokunola (2019) LPELR-48370. The apex Court drove home this position in Okpe vs Fan Milk Plc & Anor (2016) 12 S.C. (pt iii) 1 when the Court held as follows:
“A Notice of Appeal is said to be the spinal cord of an appeal, it is the foundation upon which an appeal is based. It is the originating process which guarantees the proper and valid commencement of an appeal. Therefore, it follows that where the originating process is defective or invalid, it cannot sustain an appeal, it will collapse, and must be struck out. See J.A. Aderibigbe & Anor vs.Tiamiyu Abidoye (2009) 5 SCM 1; (2009) 4-5 SC (Pt. 111) 123.
In other words, the Notice of Appeal being the foundation of a proper appeal, where it is shown to be incompetentor null and void, there can be no valid appeal pending before the Court. Eghologbin Oketie & 2 Ors Vs Ambrose Olughor & 6 Ors, ln Re: Osibakoro D. Otuedon vs. Peter Egueye (1995) 5 SCNJ 217.” PER EBIOWEI TOBI, J.C.A.

APPEAL: WHETHER THE APPELLANT IS ALLOWED TO FILE MORE THAN ONE NOTICE OF APPEAL

The Appellant’s case on the preliminary objection is that, an Appellant has the liberty to file more than one notice of appeal but that at the hearing, he can elect or decide on which of the notices to use. This in my opinion represents the correct position of the law which is endorsed by the Supreme Court in Boniface Adonike vs State (2015) 7 NWLR (pt 1458) 237 where the Court held thus:
“It is allowed for an appellant to file two or more notices of appeal within the period allowed or prescribed by relevant status and make an election on one of the two or multiple notices and then base his brief of argument on it. See Tukur v. Governor of Gongola State (1988) 1 NWLR page 68 p.39.”
See Chief Ogboru & Anor vs Dr Uduaghan & Ors (2012) 2-3 S.C. 66. PER EBIOWEI TOBI, J.C.A.

Before Our Lordships:

Chioma Egondu Nwosu-Iheme Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Ebiowei Tobi Justice of the Court of Appeal

Between

GREAT NIGERIA INSURANCE PLC APPELANT(S)

And

ZEAL TRUST LIMITED RESPONDENT(S)

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment): The judgment that culminated into this appeal is the judgment of Hon. Justice F. Bankole-Oki (Ms) of the Lagos Division of the High Court of Lagos State in Suit No. LD/1776/2011 – Zeal Trust Limited vs. Great Nigeria Insurance Plc delivered on 8/12/2015. The Respondent (Claimant at the lower Court) instituted the suit that culminated into this appeal at the lower Court vide a Writ of Summons and a Statement of Claim found on pages 1-8 of the records of appeal claiming the reliefs contained on page 8 of the records. For completeness, I reproduce the reliefs as follows:
1. A Declaration that the Defendant’s repudiation of the Claimant’s claims under the contracts of insurance was unlawful and amounts to a breach of duty to indemnify the Claimant under the contracts and thereby entitled the Claimant to the claim damages.
2. The sum of N22, 530,000.00 (Twenty Two Million, Five Hundred and thirty Thousand Naira) being special and general damages suffered by the Claimant as a result of the breach of duty by the Defendant under the contract of insurance between the parties.

Interest on the said sum of N22, 530,000.00 (Twenty Two Million, Five Hundred and thirty Thousand Naira) at the rate of 21% per annum from July 2011 until the date of judgment.
4. Interest on the said sum of N22, 530,000.00 (Twenty Two Million, Five Hundred and thirty Thousand Naira) at the rate of 15% per annum from the date of Judgment until final liquidation of the entire judgment sum.
5. Any Further Order(s) the Honourable Court may deem fit to make in the circumstance.The Appellant (then Defendant) filed its statement of Defence against the claims of the Respondent. The matter went on trial and after a full trial, the lower Court delivered a considered judgment found on pages 174-192 of the records wherein it held:
“In the final analysis, I am satisfied that the Claimant, on the balance of probabilities, has proved its Claims substantially under the two Insurance Contracts.
Judgment is hereby entered as follows:
1. It is hereby declared that the repudiation of the Claimant’s claims under the contracts of insurance was unlawful and amounts to a breach of duty to indemnify the Claimant under the contracts.

The amount of N15,000,000.00 (Fifteen Million Naira) less 5% is awarded to the Claimant under the Commercial Vehicle Insurance Policy.
3. The amount of N2,296,000.00 (Two Million, Two Hundred and Ninety Six Thousand Naira), less 10% is awarded to the Claimant under the Goods-in Transit Insurance Policy.
4. The reliefs on interest on the said amounts fail and are dismissed accordingly.”The Appellant dissatisfied with the judgment of the lower Court filed this appeal vide a notice of appeal. The Appellant filed two notices of appeal; the notice of appeal dated 11/12/2015 containing five grounds of appeal found on pages 63-66 of the additional record of appeal and that of 5/2/2016 containing twelve grounds of appeal found on pages 193-200 of the record of appeal. The Appellant however relied on the notice of appeal of 5/2/2016 containing twelve grounds of appeal. The grounds bereft of their particulars are hereunder reproduced:
GROUND ONE
The learned trial Judge erred in law by failing to give effect to the mandatory provision of Section 50(1) of the Insurance Act CAP 117 Laws of the Federation of Nigeria 2004 (“The Insurance

Act”) on the invalidity and non-enforcement of insurance contracts which are devoid of advance payment of premium, prior to the commencement of the insurance contract.
GROUND TWO
The learned trial Judge erred in law by refusing/neglecting to follow the authoritative and binding decision of the Superior Court on mandatory advance payment of insurance premium as the condition precedent for a valid contract of Insurance.
GROUND THREE
The learned trial Judge erred in law by holding that the Motor Vehicle Insurance Policy No. CV/2086234/10/L (Exhibit B) and Goods in Transit Insurance Policy No. GIT/2002230/10/L (Exhibit E) are valid contracts enforceable by the Court.
GROUND FOUR
The learned trial Judge erred in law by holding the Motor Vehicle Insurance and Goods in Transit Insurance Contracts as enforceable on account of the Respondent having fully paid the premium before the robbery incident.
GROUND FIVE
The learned trial Judge erred in law by utilizing equitable doctrine of Estoppel to defeat the Appellant’s defence which is to the effect that non advance payment of full premium as prescribed in the mandatory

provision of Section 50(1) of the Insurance Act rendered Respondent’s insurance contracts void/non-enforceable.
GROUND SIX
The learned trial Judge erred in law by awarding the Respondent special damages on the Motor Vehicle Insurance Policy and Goods in Transit Insurance Policy.
GROUND SEVEN
The learned trial Judge erred in law by holding that: “Similarly, with respect to the inconsistencies that learned counsel has pointed out, I am of the view that they cannot be regarded as serious enough to be rejected. This robbery took place in 2011, almost five years ago, such minute details in my view, cannot be expected to be uppermost in a person’s mind”.
GROUND EIGHT
The learned trial Judge erred in law by relying on and ascribing probative value to Exhibit H in arriving at the conclusion that the Respondent proved its case and is entitled to value of the Vehicle (less depreciation) and value of the products (less excess).
GROUND NINE
The learned trial Judge erred in law when she held that Respondent complied with the provision on immediate report of loss of the lorry and the AGO products to the

Appellant.
GROUND TEN
The learned trial Judge erred in law when she held that Appellant waived the requirement of immediate reporting of the loss of the Vehicle and AGO products through the subsequent appointment of loss Adjuster or investigating agent.
GROUND ELEVEN
The learned trial Judge erred by granting the Respondent the sums of N15,000,000.00 less 5%, and N2,296,000.00 less 10% on the Respondent’s claim for special damages (i.e. for loss of Vehicle and AGO products respectively).
GROUND TWELVE
The judgment is against the weight of evidence.

The Appellant’s brief filed on 8/7/2016 but deemed as properly filed and served on 23/1/2018 was settled by Mrs. Olayemi Badewole. In the Appellant’s brief, learned counsel raised the following issues for determination viz:
1. Whether or not, the learned trial Judge acted rightly when she failed to give effect to the mandatory statutory provision of Section 50(1) of the Insurance Act on the invalidity and non enforceability of insurance contracts not preceded by payment of insurance premium in advance.
2. Whether, the Respondent having failed to pay

insurance premiums in the manner stipulated in the mandatory provision of Section 50(1) of the Insurance Act, the motor vehicle and Goods in-Transit insurance policies can be invalidated by the subsequent payment of the premium before the alleged robbery incident.
3. Whether the learned trial Judge rightly or wrongly applied the equitable doctrine of estoppel to defeat the mandatory statutory provision of Section 50(1) of the Insurance Act, especially when the Respondent did not plead estoppel.
4. Whether the learned trial Judge rightly awarded the Respondent special damages on the Motor Vehicle and Goods-in-Transit Insurance Policies when the Respondent failed to tender evidence in proof of the special damages.
5. Whether the learned trial Judge rightly or wrongly raised the issue of waiver suo motu and applied the same to arrive at her decision that the Appellant had waived the requirement of immediate reporting of the loss by Appellant’s appointment of an investigating agent. Without hearing the Appellant on the issue of waiver.
6. Whether the quality of evidence tendered by the Respondent warrant the entering of the judgment of the

lower Court in favour of the Respondent.

The Appellant’s counsel argued issues one and two together. On these issues, it is the contention of learned counsel that contracts of insurance are now primarily regulated by statute and as such the contracting parties are bound to comply with the mandatory statutory provisions of Section 50(1) of the Insurance Act which the Respondent did not comply with especially with respect to the condition precedent to the formation of a valid insurance contract. It is the further contention of counsel that even though the lower Court acknowledged the holding of the Supreme Court in Corporate Ideal Insurance Ltd vs. Ajaokuta Steel Co Ltd & 2 Ors (2014) 2 MJSC (Pt. 1) 1, it still failed to follow the principle of stare decisis to give effect to the mandatory condition precedent stipulated in Section 50(1) of the Insurance Act. He cited Leadway Assurance Co Ltd vs. J.U.C. Ltd (2005) NWLR (Pt. 919) 539. Counsel argued that the learned trial Judge erred when it based its decision on inferences and speculations when she made inferences to the Ngilari’s case. He cited Osinowo vs. N.B.N Ltd (1998) 11 NWLR (Pt. 574)

408; Odey vs. Atrogo & Ors (2013) LPELR-22110 (CA); L.M.B. Ltd vs. P.T.F. (2006) 5 NWLR (Pt. 974) 463; Dalhatu vs. Turaki (2003) 15 NWLR (Pt. 843) 310 which are cases that borders on the principle of stare decisis. Counsel submitted further that an act can only be valid if it is performed in the manner prescribed by statute. For this position, counsel relied on Ojukwu vs. Kaine (rtd) (year omitted) 15 NWLR (Pt. 594) 309 @ 312; Abubakar vs. Nasamu (2012) 17 NWLR (Pt. 1330) 523 @ 577; Malah vs. Kachalla (1999) 2 NWLR (Pt. 594) 309 @ 312; Corporate Ideal Insurance Ltd vs. Ajaokuta Steel Co. Ltd (2014) 2 MJSC (Pt. 1) 1 @ 27. Learned Counsel further submitted that the learned trial Court had no jurisdiction to rationalize or qualify or speculate on what the Court of Appeal would or would not have decided in the Leadway Assurance Co. Ltd’s case but was duty bound to follow the Court’s decision. He further submitted that the lower Court’s decision that non-compliance with Section 50(1) of the Insurance Act rendered the Respondent’s insurance contracts voidable until full payment of premium, is tantamount to the lower Court departing from

the pleadings/rewriting the contracts of the parties. He called in aid the cases of Fagbenro vs. Arobadi (2006) 7 NWLR (Pt. 978) 172 @ 194-195; Nwosu North and South Int’l Ltd & Anor vs. Nigeria Int’l Trading and Industrial Corporation (2014) LPELR-23425 (CA); Nigerian Breweries Plc vs. Audu (2009) LPELR-8863 (CA). He contended that contrary to the decision of the learned trial Judge, Section 50 (1) of the Insurance Act does not permit installmental payment of premium, as well as payment of insurance premium before the accident, which is the risk insured or midway into the policy and it certainly does not make provision for voidable insurance contract. On this issue, it is the final submission of counsel that throughout the judgment, the learned trial Judge failed to make any finding whether the Respondent complied with Section 50(1) of the Insurance Act.

On issue two, it is the contention of Appellant’s counsel that the issue of estoppel was only raised by the Respondent in its final address to which the Respondent reacted to and that having not pleaded estoppel, it cannot rely on it. He went further in stating that the equitable

doctrine of estoppel cannot be invoked by the Respondent who failed to comply with the mandatory statutory provision of Section 50(1) of the Insurance Act and that the lower Court countenancing the issue of estoppel will amount to a denial of fair hearing to the Appellant. It is the grouse of the Appellant that the lower Court having agreed with the Appellant that the Respondent having not pleaded estoppel could not rely on it, cannot summersault in the proceeding to apply the equitable principle of estoppel to find in favour of the Respondent. He cited Egbe vs. Adefarasin (1987) 1 NWLR (Pt. 27) 24; Lion of Africa vs. Fisayo (1986) 4 NWLR (Pt. 37) 674; Ilona vs. Idakwo (2003) 11 NWLR (Pt. 886) 53. It was submitted by Appellant’s counsel that the lower Court wrongly relied on Exhibit N and applied the doctrine of estoppel which was never pleaded by the Respondent to the favour of the Respondent. He therefore urged this Court to set aside the judgment of the lower Court. He placed reliance on INEC vs. Atuma & Ors (2013) LPELR-20589 (SC); Adelaja vs. Alade (1999) 6 NWLR (Pt. 608) 544. It is the contention of learned counsel that Exhibit N which formed the

basis of the learned trial Court’s application of the doctrine of estoppel is an illegal document as it conveys a deliberate attempt of the parties to circumvent the mandatory statutory provision of Section 50(1) of the Insurance Act. Counsel relying on NNPC vs. Famfa Oil Ltd (2012) 17 NWLR (Pt. 1328) 148 @ 196; Raymond Inyang vs. Ebong (2002) 2 NWLR (Pt. 751) 284 @ 331; Longe vs. FBN Plc (2010) 20 NLLR (Pt. 57) 277 @ 316; Bayero vs. Crusaders Ins. Co. Ltd (1998) 6 NWLR (Pt. 553) 214 @ 226 posited that the lower Court was bound to declare the said Exhibit N as an illegal agreement. He urged this Court to resolve this issue in favour of the Appellant.

Learned counsel argued issues four and five together. On these issues, it is the submission of learned counsel that though the Respondent pleaded particulars of special damages, it failed to adduce/tender evidence in support of the pleading and as such it is deemed to have abandoned the facts pleaded in the said paragraphs 20a and 20b of the Statement of Claim. He relied on Buhari vs. Obasanjo (2005) 2 NWLR (Pt. 910) 241 @ 351; N.A.S. Ltd vs. UBA Plc (2005) 14 NWLR (Pt. 945) 421 @ 436; Ugo vs. Okafor

(1996) 3 NWLR (Pt. 438) 542; Awojugbagbe Light Industries vs. Chinukwe (1995) 4 NWLR (Pt. 390) 379 @ 427. On the pleading and strict proof of special damages, counsel placed reliance on Alhaju Otaru & Sons Ltd vs. Idris (1999) 6 NWLR (Pt. 606) 330 @ 345-346; Oyebode vs. Oloyede (1999) 2 NWLR (Pt. 592) 523 @ 531; Blackwood Hodge (Nig) Plc vs. Omuna Construction Co (2002) 12 NWLR (Pt. 782) 523 @ 536; Badmus vs. Abegunde (1999) 11 NWLR (Pt. 627) 493; Moghalu vs. Ude (2001) 1 NWLR (Pt. 693) 1 @ 14. On the strength of his argument, counsel called on this Court to set aside the lower Court’s award of special damages as there was no evidence in support of same.

Learned Counsel further relying on ACN vs. Nyako (2012) 11 MJSC 1 @ 70; Fawehinmi & Ors vs. Akinlaja & Ors (2010) LPELR-8963 (CA); Terab vs. Lawan (1992) 3 NWLR (Pt. 231) 569 @ 590; Aliucha & Anor vs. Elechi & Ors (2012) 3 MJSC 1 @ 33 asserted that it was wrong for the learned trial Judge to have countenanced Exhibits A and G in the absence of admissible evidence of the Respondent’s witnesses who failed to explain to the lower Court the purport of these exhibits. Counsel

stated that the Respondent rather dumped these documents on the Court. Counsel further stated that contrary to the principles of fair hearing, the learned trial Judge descended into the arena of litigation and took it upon herself to unbundle the dumped exhibits and that this resulted in the lower Court granting the award of special damages against the Appellant. Appellant’s counsel posited that this act of the trial Judge is an infraction of the Appellant’s right to fair hearing. He cited PDP vs. INEC &Ors (2012) LPELR-9225 (CA); Iheanacho vs. Chigere (2004) 17 NWLR (Pt. 901) 130; UTB (Nig) Ltd vs. Ozoemena (2001) 7 NWLR (Pt. 713) 717 @ 735; UBN vs. Emole (2001) 18 NWLR (Pt. 745) 501 @ 517-518. It is the submission of learned counsel that in so far as Exhibit H was recorded and made at the instance of a company other than the Respondent, the learned trial Judge ought not to have ascribed any probative value to or relied on the said exhibit. It is the further submission of counsel that the evidence tendered by the Respondent before the lower Court is riddled with contradictions such that the lower Court ought to have dismissed the

Respondent’s case in its entirety. For this, he commended the cases of Kaduna Textiles Ltd vs. Umar (1994) 1 NWLR (Pt. 319) 143 @ 156; Ige vs. Akoju (1994) 4 NWLR (Pt. 340) 535 @ 545 to this Court. On the strength of his argument, he urged this Court to resolve issues four and five in the Appellant’s favour.

On the final issue which is issue six, it is the contention of learned counsel that from the pleadings of the Respondent, particularly paragraphs 5, 6, 8 and 9 of the Statement of Claim and 3, and 4 of the Claimant’s Reply, it is clear that the Respondent’s contracts of insurance as pleaded were illegal and unenforceable. It is the submission of counsel relying on Unitrust Insurance Co. Ltd vs. Ambico Sendiran Nigeria Ltd (2012) LPELR-15417 (CA); Leadway Assurance Co. Ltd vs. J.U.C. Ltd (supra) that the Respondent having adduced evidence showing through the exhibits tendered such as Exhibits B, E and D-D2, and written statements on oath, that the contracts of insurance were unenforceable, the learned trial Judge ought to have dismissed the Respondent’s claim in its entirety. In conclusion, Learned Counsel for the Appellant

urged this Court to dismiss the claims of the Respondent in its entirety and allow the appeal.

The Respondent’s brief dated and filed 26/2/2018 was settled by Kadir Ola Ganiyu Esq. Learned counsel in the Respondent’s brief raised a preliminary objection with the following issues for determination:
1. Whether or not there is a valid Notice of Appeal before this Honourable Court
2. Whether there is a brief of argument properly filed before the Court of Appeal.

Learned counsel argued both issues together. On the said issues, counsel stated the trite principle of law which is to the effect that there must be a valid Notice of Appeal before an appeal can be said to be competent and that where a Notice of Appeal is declared incompetent, there is no valid appeal before the Court and same will be dismissed. He iterated that there are two notices of appeal before the Court, the one dated and filed 11/12/2015 found on pages 63-66 of the additional record of appeal and the other dated and filed 5/2/2016 found on pages 193-200 of the record of appeal. It is the contention of counsel that the second notice of appeal upon which the brief of

the Appellant is predicated is incompetent and defective as the leave of Court was not sought and obtained before the amendment was made in accordance with Order 7 of the Court of Appeal Rules, 2016. Counsel referred to Aviagents Ltd vs. Balstravst Investment (1966) 1 All ER 450; Olowokere vs. African Newspaper (1993) 5 NWLR (Pt. 295) 583; Olarewaju vs. B.O.N Ltd (1994) NWLR (Pt. 364) 622. Counsel posited that since there are two existing appeals on the same judgment of the lower Court and the Appellant’s brief is based on the second notice of appeal, there is no competent appeal before the Court. He relied on Korede vs. Adedokun (2001) 15 NWLR (part omitted) 483 @ 493; Attorney General of the Federation vs. ANPP &Ors (2003) 12 SCNJ 67 @ 81-82. It is the contention of counsel that the motion on notice of 4/7/2016 filed by the Appellant and which was moved and granted by this Court on 23/1/2018 did not seek among its prayers, leave to amend the notice of appeal dated 11/12/2016 and as such, the amendments in the amended notice of appeal dated 5/2/2016 amount to a nullity. He relied on Okoye vs. Nigerian Construction & Furniture Co. Ltd (1991) 6

NWLR (Pt. 199) 501; NEPA vs. Ango (2001) 15 NWLR (Pt. 737) 627 @ 645-646 (CA). It is the further contention of counsel that the record of appeal did not contain the first notice of appeal as the Appellant intentionally left it out during settlement of records so as to misdirect the court. He urged this court relying on Order 7 Rule 6 of the Court of Appeal Rules, 2016 and the cases of Attorney General of the Federation vs. Guardian Newspapers Ltd (1999) 9 NWLR (Pt. 618) 233 (CA); Hambe & Anor vs. Hueze & Ors (2001) 2 SCNJ 31 @ 43 to hold that the appeal is incompetent.

In arguing the appeal on the merit, learned counsel formulated a sole issue for determination viz:
Whether or not there are valid insurance contracts between the parties in compliance with the provisions of Section 50(1) & (2); which the Appellant has repudiated unlawfully amounting to a breach of duty and entitling the Respondent to be indemnified thereon?

On the lone issue for determination, counsel cited Jombo United Company Limited vs. Leadway Assurance Company Limited (2016) LPELR-40831; Addison United Nigeria Limited vs. Lion of Africa Insurance Limited (2010)

LPELR-3596 (CA) on the incidence of insurance. It is the position of counsel that by the content of Exhibit N and the opening paragraph of Exhibit B, it is evident that at the time the parties entered into the contract, the contract was conditioned on the payment of the balance of the premium after the first installment before either party becomes bound by the contract; which implication is that the payment of the balance must be fulfilled before the effect can flow. He referred to Industrial and General Insurance Co. Ltd vs. Adogu (2010) 1 NWLR (Pt. 1175) 337 @ 345; Ngillari vs. NICON (1998) 8 NWLR (Pt. 560) 21; Unity Kapital Assurance Plc vs. Akut Investment Limited (2012) 8 CLRN 67, (2012) 4 BFLR 469 (CA). It is the submission of learned counsel that against the argument of the Appellant that the Respondent actually complied with the provisions of the law in respect of Section 50(1) of the Insurance Act, counsel contended that the parties are at consensus that the premium for both insurance contracts were indeed paid in advance before the occurrence of the risk insured and as such allowing the Appellant to repudiate its obligations under the insurance

contracts will amount to benefitting from its own wrong after having pocketed the premium of the Respondent. He placed reliance on Unity Kapital Assurance Plc vs. Akut Investment Limited (supra); National Insurance Corporation of Nigeria vs. Power & Industrial Engineering Company Ltd (1986) LPELR-1965 (SC); Industrial & General Insurance Company Limited vs. Kechinyere Adogu (Mrs.) (2009) LPELR-15093 (CA), (2010) 1 NWLR (Pt. 1175) 337 in further contending that the payment in full of the agreed premium on the insurance contracts by the Respondent before the occurrence of the risk insured is sufficient compliance with the intent of Section 50(1) of the Insurance Act.

Learned counsel cited Jombo United Company Limited vs. Leadway Assurance Company Limited (supra) in submitting that the Appellant having endorsed and accepted the proposal of payment of premium by installment is therefore bound by its contract. He cited Bala James Ngillari vs. National Insurance Corporation of Nigeria (1998) LPELR-1989 (SC) and referred to Exhibits O, C, N and B. It is the position of counsel that the Supreme Court has not overruled its earlier decision in

Bala James Ngillari vs. National Insurance Corporation of Nigeria (supra) by its subsequent decision in Corporate Ideal Insurance Ltd vs. Ajaokuta Steel Co Ltd & 2 Ors (supra) which was also restated in Jombo United Company Limited vs. Leadway Assurance Company Limited (supra). It is the submission of counsel that once premium is paid as agreed by the parties, before the occurrence of the risk insured, then there is a valid contract of insurance and parties are bound by the terms of the said contract.

As to the issue of proof of particulars of loss and the cases cited by the Appellant in its brief, learned counsel referred this Court to pages 144-150 of the record of appeal where the issues were canvassed.

The Appellant exercising its constitutional right to a reply filed a reply brief on 3/4/2018 responding to the Respondent’s preliminary objection and the Respondent’s brief.

The Appellant counsel in responding to the preliminary objection raised a sole issue for determination viz:
Whether or not, the Appellant’s appeal initiated by Notice of Appeal filed on 5th February 2016 is competent or incompetent as urged by the Respondent.

It is the argument of counsel that there is no merit in the argument of the Respondent counsel as an appeal is not rendered incompetent on the mere fact that it is brought by more than one notice of appeal. Counsel contended that an Appellant can file more than one notice of appeal against a judgment and elect to rely on one of the notices and that by the act of the Appellant compiling and transmitting the notice of appeal dated 5/2/2016 with the record of appeal and predicating its Appellant brief on the said notice of appeal, it is clear that the Appellant has abandoned the earlier notice of appeal dated 11/12/2015. He relied on Tukur vs. UBA (2012) 6-7 MJSC (Part IV) 156 @ 174; Tukur vs. Government of Gongola State 1 NSCC 30 @ 36. Counsel further argued that against the Respondent’s belief, the notice of appeal dated 5/2/2016 is not an amended notice of appeal but is rather a substantive notice of appeal validly filed and as such, does not require the leave of the Court to file same. He urged this Court to dismiss the preliminary objection as it lacks merit.

In replying to the Respondent’s brief, it was asserted by counsel

that the Respondent in its brief neither reacted nor responded to any argument/submissions to challenge the submissions made on behalf of the Appellant on issues 3, 4, 5 and 6 formulated for determination in the Appellant’s brief and as such the submissions on those issues are deemed conceded. He placed reliance on Adesanya vs. Otuewu (1993) 1 NWLR (Pt. 270) 414 @ 456; P.W. Nig. Ltd vs. Gombe (2001) 17 NWLR (Pt. 742) 366 @ 382. It is the submission of counsel that the Respondent’s submission anchored on the premise stated in paragraphs 4.13, 4.22 and 4.29 of the Respondent’s brief are wrong and contrary to the law as by Section 1 of the Insurance Act, the Appellant is statutorily bound to comply with the mandatory provisions of Section 50(1) of the Insurance Act for the validity of the insurance coverage in Exhibits B and E. He cited Corporate Ideal Insurance Ltd vs. Ajaokuta Steel Co Ltd & 2 Ors (supra). It is the contention of counsel that there is no provision in the Insurance Act or Section 50(1) that supports the Respondent’s submission that installmental payment of insurance premium before the occurrence of the risk covered

renders the insurer liable on the insurance contract. He cited Unitrust Insurance Co. Ltd vs. Ambico Sendiran Nigeria Ltd (supra); Jombo United Company Limited vs. Leadway Assurance Company Limited (supra) and submitted that the decisions of this Court and the Supreme Court is settled that the relevant time prescribed by Section 50(1) of the Insurance Act, for payment of insurance premium is at the time of entering into the contract. Counsel relying on Yemisi Akinyosore vs. FIRS (2012) LPELR-7964 (CA); Mega Progressive People’s Party vs. INEC (2015) LPELR-25706 (SC) further submitted that the Respondent’s argument in paragraph 4.13 of its brief is untenable in law.

It is the contention of counsel that the cases of Unity Kapita Assurance Plc vs. Akut Investment Limited (supra); National Insurance Corporation of Nigeria vs. Power & Industrial Engineering Company Ltd (supra); Industrial & General Insurance Company Limited vs. Kechinyere Adogu (Mrs.) (supra) cited by the Respondent are not applicable to the instant case as in the Ngillari’s case, the Court did not consider the application of Section 50(1) of the Insurance Act and the

effect of non-compliance with the said law while the NICON’s case was decided in 1986 prior to the promulgation of Section 50(1) of the Insurance Act. Counsel also posited that the facts in Industrial & General Insurance Company Limited vs. Kechinyere Adogu (Mrs.) (supra); Unity Kapita Assurance Plc vs. Akut Investment Limited (supra) are distinguishable from this instant case. It is the final submission of counsel to the Respondent that Exhibit N is an illegal agreement. He therefore urged this Court to dismiss the respondent’s claims in its entirety.

The facts of the case on appeal are not complicated at all and what is at stake in this appeal is also clear and simple. There were insurance contracts entered into between the parties in which, the Appellant is the insurer and the Respondent the insured. From the facts of the case, the Respondent did not fully pay the premium when the contracts were entered. In other words, when the contracts of insurance were entered, the Respondent did not fully pay the premium which is covered by the policies. With the understanding of the Appellant as agreed between the parties, payment by installments

of the premium was acceptable to the Appellant as evidenced by Exhibit N. The Respondent however fully paid the premium before the occurrence of the risk insured. As at the time the risk insured happened, the Respondent has fully paid the premium which though was not paid at the time the insurance contract was entered. The Appellant is using as ground to escape liability the fact that the full premium was not paid when the contract of insurance was entered between the parties. The Appellant is relying on Section 50 (1) of the Insurance Act 2003. The Respondent on the other hand is of the view that since the Appellant agreed to payments in installments, it is of no moment that the premium was not paid fully when the contract on insurance was entered. Once the premium was fully paid before the risk insured happened, the Appellant is estopped from denying liability. This is the case of the Respondent both at the lower Court and in this appeal.

Apart from been opposite parties in this appeal, the position of the parties are clearly different from each other and have no meeting point unlike Rivers Niger and Benue in the circumference in Lokoja. The point I am

making here is that both parties cannot be right as one will be right and the other wrong. The starting point to deciding this appeal is the provisions of the Insurance Act 2003 particularly Section 50 which is in the front burner of this appeal. I will herein reproduce Section 50 of the Insurance Act which provides thus:
“50 (1) The receipt of an insurance premium shall be a condition precedent to a valid contract of insurance and there shall be no cover in respect of an insurance risk, unless the premium paid in advance.
(2) An insurance premium collected by an insurance broker in respect of an insurance business transacted through the insurance broker shall be deemed to be premium paid to the insurer involved in the transaction.”
From the above section it is clear that for the insured to benefit from the policy, he must have paid the premium in advance evidenced by a receipt. The question of great relevance that will decide this appeal one way or the other is what does payment in advance implies? Does it mean payment at the time of entering the contract or payment before the occurrence of the risk the insurance policy covers? It

is the answer to this question that will determine this appeal.

Before I however go into this, I will have to consider the Preliminary objection raised by the Respondent to this appeal. The Respondent raised a preliminary objection and consequent upon that, the law requires that I consider the preliminary objection first as the determination of the preliminary objection will determine whether I will consider the appeal on the merit. This is so because should the preliminary objection succeeds there will be no need to consider the merit of the appeal. That is the consequence of a successful preliminary objection as the appeal will be terminated at that stage. This is why it is settled law that when preliminary objection is raised it should be considered first. See Petgas Resources Limited vs Louis Mbanefo (2017) 6 S.C. (pt v111) 49; Oteri Holdings Ltd vs Oluwa & Ors (2020) LPELR-52395 (SC); Alfa Saka Salami vs Alhaji Mohammed Jodi Magaji Muse Family (2019) LPELR-47038.

The Respondent is challenging the notice of appeal on the ground that the Appellant filed two notices of appeal and that the second notice is meant to be an amendment of the

original notice of appeal and since the Appellant did not obtain leave, the notice is therefore invalid and incompetent and consequent upon that, there is no appeal with the legal consequence that the appeal is incompetent. It is settled law that once a notice of appeal upon which the appeal is predicated is incompetent, there is no appeal and therefore the appeal will be struck out. See Prophet Sonibare & Anor vs Saka Imolokunola (2019) LPELR-48370. The apex Court drove home this position in Okpe vs Fan Milk Plc & Anor (2016) 12 S.C. (pt iii) 1 when the Court held as follows:
“A Notice of Appeal is said to be the spinal cord of an appeal, it is the foundation upon which an appeal is based. It is the originating process which guarantees the proper and valid commencement of an appeal. Therefore, it follows that where the originating process is defective or invalid, it cannot sustain an appeal, it will collapse, and must be struck out. See J.A. Aderibigbe & Anor vs.Tiamiyu Abidoye (2009) 5 SCM 1; (2009) 4-5 SC (Pt. 111) 123.
In other words, the Notice of Appeal being the foundation of a proper appeal, where it is shown to be incompetent

or null and void, there can be no valid appeal pending before the Court. Eghologbin Oketie & 2 Ors Vs Ambrose Olughor & 6 Ors, ln Re: Osibakoro D. Otuedon vs. Peter Egueye (1995) 5 SCNJ 217.”

The above is not a challenge in this appeal. What however is a challenge is whether the notice of appeal is valid. From the records, the Respondent seems to submit that the Appellant filed two Notices of Appeal. Those are the Notice filed on 11/12/15 found on pages 63-66 of the additional record of appeal and another filed on 5/2/16 found on pages 193-199 of the record of appeal. The later one which is the extant Notice of appeal was filed on 5/2/16. The Respondent’s case in the Preliminary objection is that the extant notice file later in time amounts to an amendment and therefore the Appellant should have sought leave to amend the notice of appeal; failure to do that makes the Notice of Appeal incompetent. The Appellant’s case on the preliminary objection is that, an Appellant has the liberty to file more than one notice of appeal but that at the hearing, he can elect or decide on which of the notices to use. This in my opinion represents

the correct position of the law which is endorsed by the Supreme Court in Boniface Adonike vs State (2015) 7 NWLR (pt 1458) 237 where the Court held thus:
“It is allowed for an appellant to file two or more notices of appeal within the period allowed or prescribed by relevant status and make an election on one of the two or multiple notices and then base his brief of argument on it. See Tukur v. Governor of Gongola State (1988) 1 NWLR page 68 p.39.”
See Chief Ogboru & Anor vs Dr Uduaghan & Ors (2012) 2-3 S.C. 66.
The Notice of Appeal filed on 5/2/2016 did not indicate that it was an amended notice. In the circumstance, it will be wrong to tag it an amended notice. It is therefore not an amended notice. There is no motion before the Court seeking for the amendment of the Notice of Appeal so the Respondent was wrong to read into it the tag of amended notice. The argument of the Respondent’s counsel that leave need to be sought to allow the Notice of 5/2/16 to be used on the ground that it is an amended notice will not fly as in all intent and purpose, the Notice of Appeal of 5/2/16 is not an amendment to the notice of

11/12/15. It is an independent notice which stand on its own and that gives the Appellant the prerogative to decide which the notices to use.
The Appellant is however not off the hook yet as the law is that the extant notice will be incompetent if it was not filed within time and no leave was sought to file outside the time allowed by law. In this instance, I find instructive the Supreme Court case of Hassan Tukur vs Garba Umar UBA & Ors (2012) 4 NWLR (pt 1343) 90 where the Court held:
“There is also no doubt and it cannot be disputed that an appellant is entitled to file more than one Notice of Appeal within the time prescribed for so doing by the Rules of Court. But whenever there are more than one Notices of Appeal and all the said Notices were filed within the time so prescribed, the Appellant cannot use or rely upon more than just one of the Notices of Appeal to argue the appeal. He must choose which of them he intends to rely upon. See Bilante International Ltd v. Nigeria Deposit Insurance Corporation (2011) 8 SCM 40 at 540; Iteshi Onwe v. The State (1975) 9 – 11 SC 41.”
The apex Court went forward in the above case to hold

thus:
“However, the learned senior counsel to the Appellant has sought to withdraw or abandon the first Notice of Appeal filed earlier in this appeal on 8th September, 2011 and the issues formulated there from. This can surely be done and it is permissible. In Tukur Vs Government of Gongola State (1988) 1 NSCC 30 at 36 this Court had held as follows:
“An appellant can validly withdraw one of two Notices of Appeal and then proceed to argue his appeal based on the other remaining Notice of Appeal.”
In the same case, this Court, per Obaseki, JSC on page 41 opined as follows:
“…that the filing of more than one notice does not affect the validity of an appeal if all the notices are filed within the statutory period for appealing. Notices filed outside the period unless time is extended are incompetent. In other words, an appeal is not incompetent because it is brought by more than one notice of appeal.”
See also; Akeredolu & Ors Vs. Akinremi & Ors (1986) 2 NWLR 710, Harriman Vs Harriman (1987) 3 NWLR 244 and Iteshi Onwe Vs The State (1975) 9-10 SC 41.
Earlier in the Tukur’s case (supra) this Court had opined as

follows:
“It is more correct to say that the Rules of the Court of Appeal did not expressly provide for the filing of more than one notice. The Rules were silent on the Issue and it is therefore my opinion that every notice of appeal filed within time is valid. If more than one notice is filed within time, the others may be superfluous but not invalid. All the notices combined have been in exercise of a right of appeal. They may have stated different grounds which if permissible in law, gives validity and competency to the notice.
Where several notices of appeal have been validly filed, I cannot see anything preventing an application for leave to consolidate them into one or for withdrawal of all except one.”
The point made in the above case without trying to interpret the decision of the Supreme Court as it relates to the Preliminary Objection is that no law frowns against the Appellant filing two notices of appeal and consequently the Appellant was in order in electing to use one of the notices of appeal. The Appellant has elected to use the Notice of 5/2/16 as the extant notice. Whether the Appellant would have obtained leave will depend on

whether that notice was filed within the time frame allowed by law.
The judgment of the lower Court was delivered on 8/12/15 and being a final judgment, the law allows the Appellant to file a Notice of Appeal within three months of the judgment. The extant Notice of appeal was filed on 5/2/16 while the judgment was delivered on 8/12/15. This obviously is within the three months period required by law and therefore the Appellant did not need to seek leave. The Preliminary Objection therefore fails and it is overruled and dismissed. I award cost of N200,000 against the Respondent in favour of the Appellant.

Having disposed of the Preliminary Objection, the coast is now clear to look at the appeal and consider same on its merit. The Appellant formulated 6 issues for determination from the 12 grounds of appeal. The Respondent raised a sole issue for determination. The Appellant has argued that since the Respondent raised a sole issue which did not address issues 3, 4, 5 & 6, the Appellant’s argument on those issues are deemed admitted by the Respondent. While I agree with the Appellant that the legal position is that if a Respondent fails to

address issues formulated by the Appellant arising from the grounds of appeal, such will amount to the admission of the Appellant address on those issues, that however does not mean that a Court will be bound by such argument and deliver judgment in favour of the Appellant. It is just like a situation where the Respondent does not file an address or brief, the Court can still consider the position of the law vis a vis the address before arriving at a decision. See Moses vs FRN (2019) LPELR-47747 (CA). The apex Court had earlier made this point in Fulani M vs State (2018) LPELR-45195 (SC) when the Court held thus:
“…Even if the Respondent had not filed a brief of argument, the Appellants argument as contained in his brief would have been considered in line with the current law applicable in the circumstance.”

The Respondent in my view has formulated a sole issue for determination, as the real challenge in this appeal as I mentioned above is whether Section 50 (1) of the Insurance Act 2003 is violated if the premium was not paid at the time of taking the policy or better still at the time of entering the contract? This is the main

issue but for completeness I will adopt the issues as formulated by the Appellant after all it is the Appellant who is aggrieved in this appeal. I will reproduce the issues again for easy flow of the judgment. The Appellant’s issues for determination which I hereby adopt are as follows:
1. Whether or not, the learned trial Judge acted rightly when she failed to give effect to the mandatory statutory provision of Section 50(1) of the Insurance Act on the invalidity and non enforceability of insurance contracts not preceded by payment of insurance premium in advance.
2. Whether, the Respondent having failed to pay insurance premiums in the manner stipulated in the mandatory provision of Section 50(1) of the Insurance Act, the motor vehicle and Goods-in-Transit insurance policies can be invalidated by the subsequent payment of the premium before the alleged robbery incident.
3. Whether the learned trial Judge rightly or wrongly applied the equitable doctrine of estoppel to defeat the mandatory statutory provision of Section 50(1) of the Insurance Act, especially when the Respondent did not plead estoppel.
4. Whether the learned trial

Judge rightly awarded the Respondent special damages on the Motor Vehicle and Goods-in-Transit Insurance Policies when the Respondent failed to tender evidence in proof of the special damages.
5. Whether the learned trial Judge rightly or wrongly raised the issue of waiver suo motu and applied the same to arrive at her decision that the Appellant had waived the requirement of immediate reporting of the loss by Appellant’s appointment of an investigating agent without hearing the Appellant on the issue of waiver.
6. Whether the quality of evidence tendered by the Respondent warrant the entering of the judgment of the lower Court in favour of the Respondent.

Since I am adopting the Appellant’s issues, I will also follow the Appellant in the way his counsel argued the issues. The Appellant took issues 1 & 2 together. I will also do that. Section 50 (1) which is in the front burner of this appeal provides thus:
“50 (1) The receipt of an insurance premium shall be a condition precedent to a valid contract of insurance and there shall be no cover in respect of an insurance risk, unless the premium paid in advance.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

There is no dispute that Section 50 of the Insurance Act is mandatory as the provision is clear in that regard. The purpose of insurance is to indemnify the insured on the occurrence of a risk covered by a policy. This means that the insured will have to pay premium for the risk so that at the occurrence of the risk insured the insurance company will pay the insured the agreed amount contained in the policy. This makes the payment of the premium a condition precedent for the liability of an insurance company to the insured in the occurrence of the risk insured. If the premium is not fully paid, the insured cannot be entitled to be indemnified on the occurrence of the risk insured. This was what the apex Court decided in Jombo United Company Limited vs Leadway Assurance Company Limited (2016) 15 NWLR (pt 1536) 439. The apex Court made it very clear that if premium is not fully paid the insured shall not be entitled to indemnity from the insurer on the occurrence of the risk. This is what the Court said:
“The above principle was applied by Acholonu JCA (as he then was) in J.O. Irukwu v. Trinity Mills Insurance Brokers (1997) 12 NWLR (Pt. 531) 11 at

134 – 135, thus:
“By virtue of the provision of Section 50(1) of the Insurance Decree No. 2 of 1997 the receipt of an Insurance premium is a condition precedent to a valid contract of insurance and there can be no cover in respect of an insurance risk unless the premium is paid in advance… There cannot be insurance whereby the insurer will indemnified without the payment of premium”.
The Appellant is holding the view that the only condition precedent for a valid insurance contract under section 50 of the Insurance Act is the receipt of an insurance premium which is evidence that the premium has been paid. The question whether that represents the position of the law and whether that is the intention of the law maker is the puzzle that will be solved to settle issues 1 and 2 which I now address. Taking the argument of the Appellant as the legal position will mean that once the Respondent is unable to produce a receipt of payment of full premium then the Appellant can be excused from liability under the insurance policy. The question therefore will be, if there is sufficient evidence that premium was fully paid but not a receipt to show for it,

can it be said that the insurance contract is not valid? I do not think so and that cannot be the intention of the law maker. What is important for the insured to be indemnified by the insurer is that the premium was fully paid. To this extent in the Jombo United Company Limited vs Leadway Assurance Company Limited (supra), the apex Court held that ‘payment of premium is a condition precedent to a valid insurance contract.’ It is not in dispute that if premium is not paid the insured cannot be indemnified. The Appellant did not deny the fact that the Respondent paid the premium for the insurance contract before the risk insured occurred, the Appellant case was that the Respondent did not fully pay the premium at the point or time that the insurance contract was entered. The Appellant interpret the provision of Section 50 of the Insurance Act, 2003 that requires paying the premium in advance to mean paying the premium at the point of entering into the contract. On the other hand, the lower Court and the Respondent are of the view that provided the premium is paid before the risk occurred, the Appellant will be liable.

The Appellant made reference to the case of Corporate Ideal Insurance Ltd vs. Ajaokuta Steel Co Ltd & 2 Ors(supra) to buttress the position that the premium must be paid in advance and that the Respondent did not pay the premium in advance and therefore the Respondent was not entitled to the claim. In this respect I will quote extensively from that case that the Appellant relied heavily on. The Supreme Court held in that case thus:
“A proper resolution of this issue turns on the construction or interpretation of Sections 50(1) and 93(1) and (2) of the Insurance Act, 1997. The Appellant had contended that non-compliance with Section 50(1) of the Act renders the contract of insurance invalid and not illegal whereas the Respondents think otherwise.
For ease of reference, let me bring to the fore, the said provision. Section 50(1) of the Insurance Act provides:
“The receipt of an insurance premium shall be a condition precedent to a valid contract of insurance and there shall be no cover in respect of an insurance risk, unless the premium is paid in advance.”
Clearly, the above provision means no other thing than what it says. There shall not be any

valid contract of insurance until and unless the premium is paid in advance. In other words, payment of premium is a condition precedent to a valid contract of insurance.
It is trite that a cardinal Rule of interpretation of statute is that where the words of a statute are clear and unambiguous, the Courts are to give them their plain and ordinary meaning. It does not require any special or canon of interpretation. This has been the position of this Court in several decided cases. See Egbe v. Yusuf (1992) NWLR (Pt.245) 1, Olanrewaju v. Governor of Oyo State (1992) 11/12 SCNJ 92.
The use of the word “shall” in Section 50(1) (supra) is instructive here. It is now well settled that where the provisions of a statute is garbed with the word “shall” as in the instant provision, it connotes that it is imperative for the provision to be obeyed. The word “shall” makes the provision mandatory, imposes a duty and is a word of command. See ONOCHIE v. ODOGWU (2006) 6 NWLR (Pt.975) 65; AMOKEODO v. IGP (1999) 5 SCNJ 71 at 81. What this means is that both the Appellant and Respondents were bound to obey the clear provisions of S.50 (1) of the Insurance Act

1997 without any discretion from any party. In other words, that Section is concluded in mandatory terms and must be applied strictly.
There is therefore no doubt that Section 50(1) of the Insurance Act 1997, specifically forbids entering into any insurance contract without the premium having first been paid “in advance.” Any non-compliance with the express provision of that Section as in this case renders the contract of Insurance between the parties illegal and unenforceable.
It is the view of this Court that where a statute clearly provides for a particular act to be done or performed in a particular way, failure to perform the act as provided will not only be interpreted as a delinquent conduct but will be interpreted as not complying with the statutory provision. It was held by this Court in ADESANOYE v. ADEWOLE (2006) 14 NWLR (Pt.1000) 242 that in such a situation, the consequences of non-compliance follow, notwithstanding that the statute does not specifically provide for sanction. This knocks the bottom off the submission of the Learned Counsel for the Appellant in this case that because Section 50(1) of the Act does not provide for

sanction, the contract cannot be said to be illegal.
A contract which violently violates the provisions of a statute as in this case, with the sole aim of circumventing the intendment of the law maker is, to all intents and purpose, illegal, null and void and unenforceable. Such a contract or agreement is against public policy and makes nonsense of legislative efforts to streamline the ways and means of business relations. This Court, and any other Court for that matter would not be allowed to be used to enforce any obligations arising there from. The summary of all I have endeavoured to say above is that parties cannot be allowed to enter into a contract or transaction to circumvent the clear and unambiguous provisions of a statute.
It has been the view of this Court and I reiterate it here that a transaction or contract, the making or performance of which is expressly impliedly prohibited by statute is illegal and unenforceable or impliedly prohibited by statute is illegal and unenforceable. See ALAO v. ACB Ltd (supra); EIMSKIP LTD v. EXQUISITE INDUSTRIES NIGERIA LTD (2003) 4 NWLR (Pt.809) 88 at 118 – 199 paras H – A.
Although it is the duty

of a trial Court to enforce agreements between parties and not to speculate or question the reasons for their entering into any such agreement, where such agreement is illegal or contrary to public policy, such agreement or contract should not be enforced by the Court. See OYENEYIN v. AKINKUGBE (supra).”
The insurer in the above case escapes liability because no premium was paid and not because there was no receipt of premium payment. The purport of Section 50 therefore is the payment of premium and not necessarily receipt of the payment. If there is evidence of payment of the premium the condition precedent would have been satisfied. That is the purport of the line of cases Appellant referred to and indeed the intention of the law makers of the Insurance Act. The premium is to be paid in advance. As to what will constitute payment in advance does not necessarily mean payment of the premium at the point of entering the contract but rather that the payment must be made before the risk covered under the policy occurs and this is more so that there is an agreement to that effect.
The law is that a contract of insurance is created when there is

agreement between the parties unequivocally as to the terms of the contract. When the insurance proposal in a form is accepted by the other party unequivocally an insurance contract is created. See Ngillari vs National Insurance Corporation of Nigeria (1998) 8 NWLR (pt 560) 1. Once the form is completed, it is a commitment to pay the premium. For the purpose of the contract, the filling of the form and returning same to the insurer is a commitment to the terms therein. The liability of the insurer will be dependent on the payment of the premium which must be fully paid before the risk occurs. This in my opinion is what paying the premium in advance means. In advance means before the risk occurs. If full payment is not made before the risk occurs, the insurer will not be liable but once full premium is paid before the risk occurred even if it was not paid at the point of entering the contract, the insurer will be liable.
In dealing with insurance, the law should be interpreted in such a way that it is liberal towards the right of the insured. The insurer should not be allowed to use technical grounds to evade liability to the insured especially once the

premium has been fully paid before the risk insured happened. In all intent and purpose, once the premium is paid before the risk insured happened, particularly in a case like this where the Appellant had agreed to the payment of the premium in installments (Exhibit N) and the Appellant received the payments in installments before the risk insured occurred, the insurer in this instance, the Appellant cannot evade liability for the occurrence of the risk insured. The lower Court said this much on page 185 of the record of appeal haven found as a fact that the Respondent fully paid the premium before the incident, a fact that the Appellant admitted, when it held thus:
“I therefore fail to see how the provisions of Section 50(1) can avail the Defendant as to the enforceable of the Insurance Contract. It is my view that the contract at its very worst was voidable until full payment of the premium.
Having complied therefore with the full payment, the Claimant can be said to have entered a valid Insurance Contract in respect of the Truck Insurance Contract, Exhibit B.”
I cannot hold otherwise as the facts as disclosed in the record of

appeal shows that the premium was fully paid before the robbery incident. The Contract was entered on 26/7/10 for the commercial vehicle insurance and 29/9/10 for the goods in transit insurance while the incident occurred on 18/1/11. Based on Exhibit N, the Appellant agreed to payment of the premium in installments which the Respondent adhered to before the incident the risk covered occurred on 18/1/11. The insurance cover for the vehicle which is Exhibit B is N825,000. The Respondent paid that premium in three installments of N330,000 on 28/7/10, N400,000 on 9/10/10 and N200,000 on 8/12/10. The final payment was made on 8/12/10 and the incident occurred on 18/1/11. The full payment was made before the incident and therefore the Appellant was liable. I resolve issues 1 & 2 in favour of the Respondent.

I will now turn to issue 3 which is; whether the lower Court was right in invoking the doctrine of estoppel when it was not pleaded. Is it true that estoppel was not pleaded? It must be stated here that there are different types of estoppel and the rule of pleading to be applied will depend on the type of estoppel relied upon. For instance, if the

estoppel relied on by the Respondent is estoppel per rem judicata or issue estoppel which is based on judgment of a Court, such estoppel must be specifically pleaded but if on the other hand it is estoppel by conduct like as in this case, there is no requirement of the law that such must be specifically pleaded. This position was brought out clearly by this Court in Okafor vs Okolie & Anor (2019) LPELR-49118 (CA) where this Court per Lokolu-Sodipe, JCA held thus:
“All I can sensibly say on this aspect of the appeal, is that I have not seen in any part of the judgment of the Tribunal where the said Tribunal held itself out as invoking the doctrine of estoppel as raised by the 1st Respondent. Furthermore, I consider it expedient to state that the Appellant would appear not to realise that the need to specifically or expressly plead estoppel where it is being relied on by a party in a case, is not sacrosanct as it were. There are various types of estoppel. They include estoppel per rem judicatam which precludes the bringing of a fresh action before any Court on the same cause and on the same issue pronounced upon by the Court in the previous

action; cause of action “estoppel” as against issue estoppel”. Cause of action estoppel effectively precludes a party to an action, his agents and privies from disputing, as against the other party, in any subsequent suit, matters which had been adjudicated upon previously by a Court of competent jurisdiction between him and his adversary involving the same issues; issue estoppel on the other hand recognizes the position that within a single cause of action, several issues may come into question which are necessary for the determination of the whole case. The general rule is that, once one or more of any such issues have been distinctly raised in a cause of action and determined between the same parties in a Court of competent jurisdiction, neither party, his servant, agent or privy is allowed to tore-open or relitigate any of such issues in another action between the same parties or their agents or privies. Estoppel of the nature mentioned hereinbefore have to be specifically pleaded. See the cases of GBEMISOLA V. BOLARINWA (2014) LPELR-22463(SC); and OKUKUJE V. AKWIDO (2001) LPELR-2526(SC) amongst many others. Even at that, it would appear that the case of

OHIAERI V. AKABEZE (1992) LPELR-2360(SC) is sufficient authority for the position that the Courts should be reluctant in disallowing estoppel though it has not been specifically pleaded. In any event, it is in my considered view clear from the cases, I have researched into, that estoppel by conduct need not be specifically pleaded by the party relying on it once a party, either by his words or conduct, has intimated that he consents to an act, which has been done and that he will offer no opposition to it, he cannot later question the legality of the act he had so sanctioned to the prejudice of those who have given faith to his word. See the case of BUHARI V. INEC (supra). See also the case of OKONKWO V. KPAJIE (1992) LPELR-2483(SC) where it has long been held to the effect that estoppel by word or conduct can be properly invoked in a case where the facts to be relied upon as estoppel are duly pleaded or brought to the notice of the adjudicating Tribunal in some appropriate way. I am in no doubt that given the averments contained in the Appellants petition, there was sufficient basis for the invocation of estoppel by the Tribunal, given the averments contained

in the Appellants petition regarding his participation in the supplementary election held on 23/3/2019. It would be absurd for the Tribunal not to have invoked the doctrine of estoppel in the manner it did, simply because the 1st Respondent did not plead the same as alleged by the Appellant.”
I am further complied to refer to another judgment of this Court. That is the case of Iloabachie vs Iloabachie (2000) 5 NWLR (pt 656) 178 where Olagunji, JCA held:
“…The third type with which the issue raised here is concerned arises from Section 151 of the Evidence Act which reads:
“When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative in interest shall be allowed, in any proceedings between himself and such person or such person’s representative in interest, to deny the truth of that thing.”
That defence was examined in Iga v. Amakiri (1976) 11 SC 1, 12-13, and Okonkwo v. Kpajie (1992) 2 NWLR (pt. 226) 633, 635. The practice and pleading of the defence of estoppel was clarified by

the Supreme Court in Chinwendu v. Mbamali (1980) 3-4 SC 31, 55-56, where the Court, per Idigbe, J.S.C., enunciated the modern trend as follows:
“One of the principal contentions of the appellants in the Court of Appeal and in this Court is that the respondents having failed to plead specifically estoppel by record (i.e. in this case, that the appellants are estoppel from claiming, as owners, the land in dispute by virtue of Exhibit 3) the learned trial judge erred in law in giving effect to Exhibit 3 in the face of abundant evidence on both sides relating to the claim, proceedings and judgment in Exhibit 3. It is my view that the Court of Appeal was right in rejecting this contention of the appellants.
Undoubtedly the old rule was that estoppel by record and deed must be pleaded where, as here, there was opportunity to do so; under the modern practice it is not, however, necessary to plead estoppel in any particular form so long as the matters constituting the estoppel are stated in such a manner (as has been done in the pleadings of the respondents in these proceedings) to show that the party pleading relies upon it as a defence or an answer.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

A few years later the matter came up again and the principle was restated and affirmed in Ezewani v. Onwordi (1986) 6SC 402. See in particular; pages 442 to 444 and 456-457; Also (1996) 4 NWLR (Pt.33) 27. To emphasize the changing trend in the practice and pleadings on estoppel the Court, per Obaseki, J.C.C at pages 409-410, while reaffirming the Court’s earlier position in Chinwendu v. Mbamali supra, expounded the position forcefully thus:
“This Court gave serious consideration to the changes in the manner of pleadings particularly from the strict, rigid, archaic forms to the simple form shorn of all the ancient legal terminology but intelligible enough to bring to the mind of the Court the case being presented to the Court. True enough, this is less colourful but it serves the purpose of the modern society and helps to highlight the changes from the old to the new. It is sufficient for the pleader to state the material facts.”
The above cases which I agree with clearly take any merit out of the argument of the Appellant on this issue.

Estoppel by conduct operates to ensure that a party does not back out of an agreement or promise made to

another which has made the other to take a step based on the promise which step he would not have ordinarily taking if not for the promise. The implication of this is that parties to any agreement should be careful not to make empty promises as every human conduct has consequences which will show up at the end. It is a sign of responsibility to own up to promises made. The doctrine does not apply based on the promise or the conduct made alone but it is complete when the other party takes steps that he would not have taken but for the promise or the conduct of the other party. Sounding more specific and relevant, the Appellant cannot lead on the Respondent to the effect that payment of premium by installment will be acceptable based on which the Respondent made three payments in installment which the Appellant accepted, only for the Appellant to turn round to say the none payment of the full payment amount to violating the mandatory provision of the Section 50 (1) of the Insurance Act.
Permit me to say by of obiter that it is conducts like this put forward by Insurance companies that makes people to be reprehensible about insurance covers. Insurance should

be based on trust and as a result the insurer should not be allowed to evade responsibility on technical ground. There is nothing technical about the argument of the Appellant. It is only morally right for a person and indeed companies to take responsibility for their actions. Apart from morally, it is legally right to hold the Appellant responsible to own up to the promise made to the Respondent by Exhibit N wherein the Appellant agreed to the payment for the Insurance cover of the Vehicle in three installments. The Appellant is estopped by its conduct from denying liability on the premise that the full premium was not made at the time when the insurance contract was entered. On the operation of the doctrine of estoppel by conduct, the Supreme Court case of Nsirim vs Nsirim (2002) 3 NWLR (pt 755) 697 is instructive. This is what the apex Court per Iguh, JSC held:
“it needs be restated that where one by his words or conduct willfully causes another to believe the existence of certain state of things and induces him to act on that belief so as to alter his own previous position, the former is precluded from averring against the latter a different

state of things as existing at the same time. This is how the rule in estoppel by conduct otherwise also known as estoppel by matter in pais has been stated. See Joe Iga and Others v. Ezekiel Amakiri and Others (1976) 11 SC 1; Gregory Ude v. Clement Nwara and Another (1993) 2 NWLR (Pt.278) 638 at 662-663.”

The law is settled to the effect that estoppel by conduct need not be specifically pleaded to avail the Respondent. The lower Court therefore was right when His lordship held that as a Court of Justice he cannot close its eyes to Exhibit N. I agree entirely with the lower Court in this regard. The argument that Exhibit N is illegal as it is against the mandatory provision of Section 50 of the Insurance Act is of no moment as I am of the firm view that Exhibit N is not contrary to the provision of the Insurance Act since the agreement covered the payment before the insured risk occurred.

Assuming I am wrong on this position though not conceding, I still cannot agree with the Appellant that estoppel was not pleaded as I find that paragraph 6 of the Respondent’s statement of Claim is sufficient pleading. The Respondent pleaded therein

thus:
“Further to paragraph 5 above, the Claimant issued its Zenith Bank Plc Cheque for the payment of the said premium in three installments as evidenced by the Defendant’s official receipt issued in respect thereof. The Claimant shall at the trial rely on the copies of the cheques and the receipt.”

I have no difficulty in resolving issue 3 in favour of the Respondent.

Issue 4 deals with whether the lower Court was right in awarding special damages. The Appellant’s position was that, there was no evidence of the special damages awarded by the lower Court. The law on when a Court can grant the relief of special damages is settled. For a party to succeed in its claim for special damages, the party must specifically plead and prove the special damages he claims as damages he suffered arising from the conduct of the other party. The difference between this and general damages is that general damages are damages which flows naturally from what the party suffered but in special damages, the party is expected to prove the damages he specially suffered. See SPDC (Nig) Ltd vs Tiebo VII (2005) 9 NWLR (Pt 931) 439;

Direct on PC Ltd vs Binkam (Nig) Ltd (2016) 3 NWLR (Pt 1498) 50.

The Respondent in paragraph 20 of the Statement of Claim found on page 7 of the record pleaded the particulars of special damages. The special damages were tagged as losses in respect of the commercial vehicle insurance policy and losses in respect of Goods in transit policy. For the commercial vehicle loss, the cost was N15, 000,000.00 while the loss for Goods in transit policy, the cost was N2,500,000.00. The cost was tagged as replacement cost. It was total cost of N17,500.000.00. Is this sufficient pleading for special damages? I do not think so. In pleading special damages, the Respondent should have pleaded receipt gotten for the replacement of the losses. The pleading says those were replacement cost. No receipt was pleaded to cover the replacement cost and so the question is how did the Respondent get to that figure as the cost for the replacement. This puts the Respondent’s claim for special damages as suspect.
Assuming I am wrong in taking this position, for special damages to succeed, there must be a synergy between the pleading and the evidence as to the special damages. See

Ajigbotosho vs RCC (2018) LPELR-44774 (SC). The meaning of this is that both the pleading and the evidence in Court must dance to the same music. The pleading cannot be dancing to gospel while the evidence will be dancing to juju music. Two witnesses testified for the Respondent at the lower Court, in their Statement on oath found on pages 10-15 of the records which they adopted as their evidence, the particulars of special damages were lacking and not stated. In the circumstance, special damage at best was only pleaded but not proved. That will not be enough. In Onyiorah vs Onyiorah (2019) LPELR-49096 (SC), the Supreme Court drove home this point in these words:
“In this case, the question is what evidence did the Appellant provide to prove his claim for special damages. Surely, averring to certain facts in pleadings are not the same as proving them. Pleadings are “the formal allegations by the Parties to a lawsuit of their respective claims and defenses, with the intended purpose being to provide notice of what is to be expected of the trial”, and proof is defined as follows –
The effect of evidence; the establishment of a fact by evidence. …Any fact

or circumstance, which leads the mind to the affirmative or negative of any proposition. The conviction or persuasion of the mind of a judge or jury, by the exhibition of evidence, of the reality of a fact alleged.
See Black’s Law Dictionary, 6th Ed. obviously, the answer to the above question is NONE. He did not lead evidence to establish the said claim.
The law says that special damages must be specifically claimed and proved strictly. Strict proof does not imply unusual proof, rather it is basically “proof that would bend or lend itself to quantification” – see Momodu V. University of Benin (1997) 7 NWLR (Pt. 512) 325, and Orient Bank (Nig) Plc. V. Bilante Int. ltd. (1997) 8 NWLR (pt 525) 37, wherein per Tobi, JCA (as he then was) further elucidated as follows –
The degree of “strict proof”… depends on the character of the acts which produce the damage and the circumstances under which the acts were done… strict proof – – means no more than that the evidence must show the same particularly as is necessary for its pleading. It should normally consist of evidence particular loss, which are exactly known or accurately measured before

trial. Strict proof does not mean unusual proof, but simply implies that a Plaintiff who has the advantage of being able to base his claim upon a precise calculation must give the Defendant access to the facts which make such calculation possible – – Strict proof in the context of special damages can mean no more than such proof as would readily lend itself to quantification or assessment.
In this case, the Appellant testified at the trial Court, but failed to show any justification for the Court to award the said claim of N457,100.00, as special damages, and the two lower Courts were right to so find.”
There is therefore no evidence of special damages before the lower Court. The implication of that is that, the Respondent has abandoned the pleading on special damages as it is trite that pleading not backed by evidence is deemed abandoned. See Olusanya vs Osinleye (2013) 12 NWLR (Pt 1367) 148.
In the circumstance, I resolve this issue in favour of the Appellant.

Now to issue 5 which deals with whether the lower Court raised suo motu the issue of waiver. I have looked at the judgment of the lower Court and also the brief of the

Appellant, I really cannot see how the issue of waiver comes in. In the brief of the Appellant, the issue of waiver was not addressed but rather that the lower Court considered documents which were dumped on the Court and therefore the Court has suo moto raised the issues. With due respect to learned counsel to the Appellant, he was confusing two issues in one. On the issue of waiver since he did not address on it, I will not waste my time to consider it here.

The lower Court is alleged to have suo motu raised some issues in the case and decided same and that is in relation to Exhibits A & G which Appellant’s counsel submitted were dumped on the Court. On the subject of suo motu, while it is the law that a Court cannot raise an issue suo motu and resolve same without calling for address from the parties, many a times what amounts to raising issue suo motu is confused by counsel. An issue that is put before the Court which was not addressed exhaustively by the counsel to which the Court decides to go into in greater details to resolve the issue before it cannot be said to be raised suo motu. If for whatever reason both counsel in a matter decide to

stop at a particular aspect of the matter before the Court, a Court which exist to do justice between the parties is not limited to stop where counsel stop for fear of been accused to raising and resolving issue suo motu. The Court is at liberty to explore those areas of the matter or issue before it that parties did not explore without calling upon parties to address the Court. An issue is said to be raised suo motu when it was not part of what was brought before the Court which the Court discover on its own. In such a situation, the Court is to call on the counsel to address it on such issue. In Anya vs Anya (2020) LPELR-49386 (SC), the apex Court drew this point home when the Court held thus:
“Another gravamen of the Appellant is that the lower Court raised the issue of forgery suo motu without affording the parties the opportunity to address it. The law is well entrenched further that the Appeal Court has the discretion to take on a point suo motu and the general principle is that the parties must be given an opportunity to be heard. However, authorities have shown that the failure to observe this principle would result into a misdirection which

will be over-turned only if there has been a substantial miscarriage of justice. Per OGUNBIYI, JSC in DICKSON OGUNSEINDE VIRYA FARMS LTD V. SOCIETE GENERALE BANK LTD & ORS (2018) LPELR- 43710(SC).
The facts in this case do not show that this was the case. The Appellant’s case before the trial Court was founded on the fact that the Will left by the deceased was forged wherein in proof or otherwise, a handwriting expert testified, which was in favour of the Respondents. How then did the issue of forgery become fresh on appeal? The lower Court being confronted with the whole facts and as reflected in the record, discovered that the issue of forgery was well founded and cannot be a new issue calling for address of parties. I think the Appellant is lost as to the distinction between raising an issue suo motu and looking into the case/file by the Court to determine a matter. This was touched by Per OKORO, JSC in AKEREDOLU V. ABRAHAM & ORS (2018) LPELR-44067(SC), when he inter alia proposed that:
“I agree with the Court below that the fact of the appellant carrying on part of his law business in Abuja was not introduced into the litigation by the

learned trial Judge. Rather, it was exposed to the Court by the learned Senior counsel for the Appellant via a letter to the Deputy Chief Registrar of the Court where one of the offices of the Appellant’s Law office is shown to be located in Abuja. A distinction must be drawn between a Court raising an issue suo motu and looking into its records to resolve the issue, and the Court looking into its records suo motu to resolve an issue raised by the parties. In respect of the former, a Court raising an issue suo motu, must invite the parties to address it before using the issue in the judgment. But on the latter situation where the Court looks into the record of appeal to enable it resolve issues already raised by the parties, a Court is not bound to invite the parties to address it. A Court can only be accused of raising an issue, matter or fact suo motu if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exists in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such

inferences; the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.
This is nothing but a foul cry as the records do not demonstrate it. Besides, where is the injustice wrought against the Appellant? The case of the Appellant is far from what he is asserting.”
From the above, it is clear that the lower Court did not raise the issue the Appellant is complaining of suo motu as it was what was before the Court. This is not to say the lower Court was right in giving probative value to Exhibits A & G when they were dumped on the Court. The law on dumping of document is settled. The party tendering any document before the Court has a duty to give voice to the lifeless document tendered. Though we say the document speaks for itself but that does not mean that the document can be dumped in the Court. A document is said to be dumped on the Court when the person or party who tenders the document do not speak concerning the document. The document must be given a voice, in other words, there must be evidence adduced relating the document to the

case. Where this is not done, the document will be said to be dumped on the Court. See APGA vs Alhaji Al- Makura & Ors (2016) 1 S.C. (pt IV) 66.
I have looked at the proceedings in the lower Court and I am inclined to agree with the Appellant that the documents were dumped on the Court and therefore the Court should not give it probative value. In Maku vs Alhaji Al-Makura & Ors (2016) 5 NWLR (pt 1505) 201 the Supreme Court held:
“1. Documents were tendered from the bar. It is the duty of the party tendering the said documents to relate each document tendered to the part of the case he intends to prove. Both Courts below were correctly of the view that the appellant failed to relate documents tendered to the part of the case he intends to prove. This could be very fatal, and usually is.
Indeed, in Ucha v. Elechi (2012) All FWLR (Pt. 625) 237, (2012) 13 NWLR (Pt. 1317) 330 on dumping of documents, I said that:
When a party decides to rely on documents to prove his case, there must be a link between the document and the specific areas of the petition. He must relate each document to the specific area of his case for which the

document was tendered. On no account must counsel dump documents on a trial Court. No Court would spend precious judicial time linking documents to specific areas of a party’s case. See A.N.P.P. v. I.N.E.C. (2010) 13 NWLR (Pt. 1212) 549. A judge is to descend from his heavenly abode, no lower than the tree tops, resolve earthly disputes and return to the Supreme Lord. His duty entails examining the case as presented by the parties in accordance with standards well laid down. Where a judge abandons that duty and starts looking for irregularities in electoral documents, and investigating documents not properly before him, he would most likely be submerged in the dust of the conflict and render a perverse judgment in the process.
Several documents after being admitted in evidence as exhibits were of no evidentiary value as there was no oral evidence to explain why they were tendered. It is the duty of appellant’s counsel to link documents tendered to specific areas of the appellant’s case, a procedure he failed to follow with obvious consequences.”
I resolve this issue also in favour of the Appellant.

In this judgment, I have resolved

issues 1, 2 & 3 in favour of the Respondent and against the Appellant while issues 4 & 5 are resolved in favour of the Appellant against the Respondent. The final issue is issue 6 which is whether there is enough evidence before the lower Court to justify the judgment. It will make sense for the free flow of the judgment to reproduce the order of the lower Court so that we can see whether the judgment is justified. This is the judgment of the lower Court
“In the final analysis, I am satisfied that the Claimant, on the balance of probabilities, has proved its Claims substantially under the two Insurance Contracts.
Judgment is hereby entered as follows:
1. It is hereby declared that the repudiation of the Claimant’s claims under the contracts of insurance was unlawful and amounts to a breach of duty to indemnify the Claimant under the contracts.
2. The amount of N15,000,000.00 (Fifteen Million Naira) less 5% is awarded to the Claimant under the Commercial Vehicle Insurance Policy.
3. The amount of N2,296,000.00 (Two Million, Two Hundred and Ninety-Six Thousand Naira), less 10% is awarded to the Claimant under the

Goods-in Transit Insurance Policy.
4. The reliefs on interest on the said amounts fail and are dismissed accordingly.”

In deciding issue 6, I must ensure that justice is done and that decisions of Court are not made for fun and the Court is not a Father Christmas that give judgment which do not fall in line with the evidence before the Court. The summary of the issues resolved above is that the Appellant cannot escape liability under the insurance cover, policy or contract simply on the ground that the premiums for the commercial vehicle insurance and the Goods in transit insurance were not paid as at when the contract was entered. I have held that based on the agreement between the parties, once the premiums were paid before the risk insured happened, the Appellant is under obligation to honour the insurance policy. I have also held above that the Respondent did not prove special damages and therefore it is not entitled to special damages. Based on those findings, it is important to state in clear terms that since the Respondent could not prove special damages, it is not entitled to such but however the Respondent is entitled to the insured

amount of the Mercedes Benz Tanker under the commercial vehicle insurance policy and the loaded diesel under the Goods in transit policy. The insured amounts under the commercial vehicle policy is N15,000,000.00 and the amount under the Goods in transit policy is N2,296,000.000. This, the Respondent is entitled to as the Appellant cannot escape liability for the insured risk.

One thing that can be deduced from the judgment of the lower Court is that in the final order the Court did not state whether the amount awarded was based on special or general damages. The point is clear that insurance contract are entered to indemnify the insured against any risk which if occurs, the insurer will pay the amount agreed in the policy. The business of insurance is built on trust and therefore insurances companies must not abuse the trust. The insured parts with money to the insurance company trusting the company that provided premium is paid, should anything happen to the insured property the insurance company will indemnify the party. The party parts with money as premium even when there is no damage to the insured item for the period. This is painful to the insured

when money is leaving his account and the insurer is smiling and praying that nothing should go wrong. Should anything go wrong provided the premium is fully paid, the insurer is under a moral and legal duty to indemnify the insured. This is where the insured smile and the insurer begin to look for reason not to honour its own part of the bargain or agreement in the policy. For the Appellant and indeed insurance companies, it is win some and lose some. The Appellant must be alive to its responsibility to go the path of honour whenever the risk occurs. It is irresponsible for an insurance company to collect full premium before the risk occurs and then look for reasons not to indemnify the insured. No legal system should allow such acts. While a Court should accord the insured that right to be indemnified, no Court should also deny the right to the insurance company to be paid premium before the occurrence of the risk insured.

On the whole, this appeal lacks merit and it is dismissed. The judgment of Hon. Justice Bankole-Oki (Ms) of the Lagos High Court in Suit NO: LD/1776/2011- Zeal Trust Limited vs Great Nigeria Insurance Plc is affirmed.

The cost of N500,000 is awarded in favour of the Respondent against the Appellant for the dismissal of this appeal.

CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I have read before now the Judgment just delivered by my learned brother, EBIOWEI TOBI, JCA and I entirely agree with the reasoning contained therein and the conclusion arrived thereat. My learned brother has adequately covered the field, as such I have nothing to add. For the same reasons ably marshalled by my learned brother which I adopt as mine, this Appeal shall be and it is hereby dismissed. I abide by the order as to costs made by TOBI JCA in the lead Judgment.

HAMMA AKAWU BARKA, J.C.A.: I read before now the judgment of my learned brother, EBIOWEI TOBI, JCA.
My learned brother has meticulously examined the entirety of the Appeal as argued by the parties and determined same, thereby dismissing the Appeal. I adopt his reasoning and conclusion in also dismissing the Appeal, and affirming the judgment of BANKOLE OKI J. of the Lagos State High Court in Suit No. LD/1776/2021; BETWEEN ZEAL TRUST LIMITED VS GREAT NIGERAI INSURANCE PLC. I abide on order made as to costs.

Appearances: