➥ CASE SUMMARY OF:
British American Insurance Company Nigeria Limited v. Matthew Ekeoma & Anor. (1994) – CA
by Branham Chima (SAL).
Court of Appeal – CA/E/60/88
➥ JUDGEMENT DELIVERED ON:
Wednesday, the 20th day of April, 1994
➥ AREA(S) OF LAW
Insurance on accident;
➥ PRINCIPLES OF LAW
⦿ DAMAGES ARE ALWAYS IN ISSUE
Damages are always in issue and so failure to deny them is not fatal: Re The Nigerian Produce Marketing Board v. Adewunmi (1972) 11 S.C. 111. — Edozie, JCA.
⦿ COURT CAN PREFER ONE EXPERT WITNESS TO ANOTHER
It is trite law that where there is conflict in the opinions of experts, it is the duty of the court to come to a conclusion in the case by resolving such a conflict and can do so by rejecting the opinion of one or the other such experts. See John Wilberforce Bamiro v. S.C.O.A. (1941) 7 WACA 150; R v. Godo (1975), 61 Cr App R.131; Ozigbo v. Police (1976) 1 NMLR 273, Laws and Practice Relating to Evidence in Nigeria by Aguda at p.115 Article 9-05. — Edozie, JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
⦿ FOR THE APPELLANT
D.C Denwigwe Esq.
⦿ FOR THE RESPONDENT
Chief B.S.C. Nzenwa.
➥ CASE FACT/HISTORY
The respondents were the plaintiffs in the court below while the appellant, an insurance company was the defendant. The 1st and 2nd respondent were, respectively the son and widow of one John Ekenma Ekeoma, hereinafter called the deceased or the insured. In 1983, the deceased took out a life insurance policy with the appellant company for the sum of N1,500.00 with the respondents as the beneficiaries. Following the death of the deceased, the respondents, commenced the action leading to this appeal.
In their six paragraphed statement of claim they alleged in paragraph 5 thereof that the deceased died accidentally on 23/11/84 and pleaded a Medical Report dated 24/11/84. By reason of the accidental death of the deceased, they claimed to be entitled under the life policy to the sum of N6,500.00 particularised in paragraph 6 of the statement of claim.
Inter alia, on the agreement of both counsel for the parties, one Innocent Onwuegbuchulam presumably an insurance expert was called to testify on the entitlement of the respondents under the policy Exh B. He confirmed that the amount payable under the policy for natural death was N1,500.00 and N6,500.00 in the case of accidental death.
At the conclusion of the trial, the learned trial Judge entered judgment for the respondents in term of their claims.
➥ ISSUE(S) & RESOLUTION(S)
I. Whether or not the Appeal should succeed?
A. THE TRIAL COURT’S DECISION IS UNIMPEACHABLE
“The learned trial Judge rejected the evidence of the appellant’s witness (D.W.1) and accepted that of the respondent’s witness (P.W.1). In this connection, he stated as follows:- “The real question which the defendant company contested was whether the insured died a natural death or an accidental one. Each party to the dispute called a medical doctor. The plaintiff’s doctor was the one who admitted the insured, treated him before death and stated in his evidence that the death in relation to the insurance policy was accidental. The defendant’s doctor did not see nor treat the insured. His evidence was hypothetical based on the medical report and it was his opinion that the death of the insured could not be accidental in relation to the insurance policy. As between the two doctors, I hold that the doctor who saw and treated the insured was in a better position to state the sort of death that the insured met with. If Dr. Okoli who testified for the defence had seen or treated the deceased insured, he would have been better equipped to say for certain the nature of death the deceased insured suffered.””
B. THE PW1 TESTIMONY WAS NOT CONFLICTED
“It was contended that the evidence of P.W.1 is conflicting and to some extent hearsay evidence. With respect, there is no conflict in the evidence of P.W.1 which gave the remote cause of death as trauma leading to bleeding inside the brain and heart failure as the immediate cause of death. Although the P.W.1 stated that he was told that the deceased fell down, his evidence on cause of death was based on his observation of the deceased. It was further contended that there was no evidence that an autopsy involving the dissection of the deceased was carried out as required under the insurance policy. The simple answer to this is that though the policy stated “internal injuries by autopsy”, it did not say that it is only by autopsy that the death resulting from internal injuries can be asserted. Besides, the P.W.1 was not cross-examined on the question as to whether or not he carried out autopsy on the body of the deceased.”
“In view of the foregoing, and in particular being of the view that the trial Judge was right in his finding that the deceased died accidentally and that the respondents’ entitlement is N6,500.00, this appeal lacks merit and is hereby dismissed. The appellant is to pay to the respondents costs assessed at N1,500.00.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (LEGISLATION)
➥ REFERENCED (CASE)
➥ REFERENCED (OTHERS)