IN THE SUPERIOR COURT OF JUDICATURE, IN THE HIGH COURT OF
jUSTICE ACCRA, (COMMERCIAL DIVISION) HELD ON TUESDAY THE 8TH
DAY OF JANUARY, 2013. BEFORE HIS LORDSHIP, JUSTICE RICHARD
ADIEI-FRIMPONG.
SUIT NO.INS14/2010
EXPOM GHANA LTD	PLAINTIFF kTj M1
1.	VANGUARD ASSURANCE AND ANOR
2.	TRI-STAR INSURANCE SERVICES GHANA LTD -	DEFENDANT
PARTIES: PLAINTIFF REPRESENTED BY DOMENICO FALCONE-PRESENT DEFENDANTS ABSENT
COUNSEL: THADDEUS SORY FOR PLAINTIFF WITH HIM CYNTHIA FRIMPOMAA-PRESENT
MARTIN AGYEN SAMPONG WITH HIM BARBARA OKINE TETTEY AND MICHAEL GYAN NYARKO FOR 1ST DEFENDANT-PRESENT AYITTEY ARMAH TETTEH FOR 2ND DEFENDANT-PRESENT
Law of Contract - Insurance - Failure of insurer to settle claim made by insured - Whether the insured deliberately caused the peril - Burden of proof - Onus on insurer to adduce credible evidence that insured committed arson - Standard of proof required in civil cases tainted with criminality is proof beyond reasonable doubt - Evidence Acts. 13(1)
Indemnity - Measure of indemnity - whether plaintiff has to he restored to the position existing at the time of the fire -- Onus on plaintiff to adduce evidence to prove quantum of loss suffered.
 
h.
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JUDGMENT
Lying at the heart of Insurance Contracts are those situations where an insurance company can lawfully refuse to settle a claim.
Such is the situation that confronts this court in the instant litigation. The Vanguard Assurance is resisting a claim put in by Expom Ghana Ltd, under an insurance policy.
In some cases, an insurer may not repudiate the contract of insurance itself but the liability that has arisen thereunder. Lord Justice BANES draws the distinction between the two instances in the case of WOODALL VS PEARL ASSURANCE CO. LTD. (1919) 1 KB 593 at 604 as follows:
"I am not able to agree with the Learned Judge upon this point. In considering this part of the case, it is necessary to draw a clear and sharp distinction between two separate classes of cases. One class is where the insurance company is repudiating a contract, in the sense that they are disputing the existence of any binding contract at
The other is where Company is repudiating liability under the contract, but accepting the existence of the contract as a binding contract...."
Curiously, as it will become manifest from the facts pleaded by the Insurer in this case, issues are raised both against the contract itself and the liability that has ensued thereunder. What is to be examined are the grounds proffered for the position taken.
 
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But a brief background events of the controversy are as follows: Some time in
2006 a Company called TRUSTY FOODS took up a combined All Risks
Insurance Policy with Vanguard.
Trusty Foods had been engaging in the business of processing tomato paste into finished products. Subsequently, by separate special resolutions by the two companies passed for that purpose, Expom took over the business of Trusty Foods as well as its assets and liabilities. The take-over process however took a bit of time. But essentially as part of the process, the policy of insurance was renewed this time in the name of Expom Ghana Ltd to span from 20/11/09 to 20/11/10, a period of 12 months. The renewal was done through the brokerage of the 2nd Defendant.
Admittedly Expom paid all premiums due in its own name. Then on 10th of May 2010, fire gutted part of the premises of the company causing extensive damage to property, mainly raw materials purported to be processed into finished products. Expom then commenced processes to claim indemnity. The denial of the claim and the subsequent events have culminated in the instant suit in which Expom seeks the following relief:
i.	A declaration that defendants are liable to indemnify Plaintiff for
the loss and damage suffered by Plaintiff as a result of the fire that
damaged Plaintiffs raw materials and goods on 10/05/10
ii.	A declaration that under and by virtue of the insurance contract
between Plaintiff and Pt Defendant, 1st Defendant is under an
obligation to indemnify Plaintiff in respect of all costs incurred by
 
Plaintiff in cleaning the debris left as a result of the fire incident that destroyed Plaintiffs raw materials and goods on 10/5/10.
iii.	An order directed at the Defendants to pay forthwith to Plaintiff the sum of four million, nine hundred and forty two thousand, three hundred and eleven Euros, fifty-three Euro cents (€4,942,311.53) being the value of raw materials and goods damaged by the fire which occurred on Plaintiffs premises on 10/5/10.
iv.	An order directed at 1st Defer1dant to pay all costs incurred by Plaintiff in clearing all the debris left at the Plaintiffs premises as a result of the fire that destroyed Plaintiffs raw materials and goods on 10/5/10.
V. Compensation by way of interest on the aforesaid sum of €4,942,311.53 at the prevailing bank rate from 11/05/10 when the Plaintiff made its first demand for payment of the aforesaid sum up to the date of final payment which interest shall to the extent possible compensate Plaintiff for the loss of profits resulting from Plaintiffs inability to carry on production by reason of Defendants' refusal to honour their obligations under the contract of insurance concluded between Plaintiff and 1st Defendant timeously.
vi.	Interest on any and all sums e;:pended by Plaintiff in clearing the debris left as a result of the fire which caused damage to Plaintiffs raw materials and goods on 10/5/10.
vii.	Costs for prosecuting the present suit on a full indemnity basis.
 
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Let me first of all note that the Plaintiff joined the TRI-STAR as a party in the action on the basis of its understanding that the 2nd Defendant was an agent to Vanguard. This is summed up in paragraph 5 of the Plaintiff's statement of claim where it is pleaded thus:
"S. Plaintiff avers that accordingly at all times material to this suit, 2" defendant acted as Pt defendant's agent and for that matter persuaded Plaintiff to insure its properties witn Pt Defendant and that it is the contract of the insurance brokered by the 2nd defendant and concluded between the Plaintiff and 1st Defendant which provides the basis for the Plaintiffs present suit against Defendants".
However the fact which all the parties admit is that, TRI-STAR was a broker in
the transaction. The position of an insurance broker is clearly specified in
Section 73 of the Insurance Act 2006 (Act 724) as follows:
" insurance broker' means a person who acts as an independent contractor or consultant who for commission or other compensation and not being an agent of the Insurer, carries out any of the following activities:
(a)	The Soliciting or negotiating on insurance business including the
renewal and continuance of such business, on behalf of an insurer or a
prospective insured other than himself
(b)	The bringing together, enter directly or through the agency of a third
party, with a view to the insurance of risks, or persons seeking insurance
 
and carried out work preparatory to the conclusion of contract of insurance".
By law therefore, an Insurance Broker is not an agent to the Insurance Company whose engagement with another party he brokered and does not for that reason alone incur liability under that transaction.
That the 2d Defendant did not incur liability on the Plaintiffs claim was later to be admitted by the Plaintiffs Managing Director Domenico Falcone under cross-examination as follows:
"Q: Mr. Falcone, you don't have any contractual agreement with TRI-STAR to pay you any insurance claim?
"A: No, my claim is against Vanguard
A:	Tri-Star was not an agent of 1st Defendant Company, Vanguard Assurance
Q:	My Lord, Tn -star was a Broker".
The foregoing can only lead to the conclusion that the Plaintiffs claim in so far as it relates to the 2n1 Defendant is not maintainable.
The real triable issues therefore emerge between the Plaintiff and Vanguard whom I shall hereinafter refer to also as "the Defendant".
The Defendant has pleaded a number of grounds to repudiate liability.
Those shall be examined against the backdrop of the evidence and the law later in this delivery. One issue I consider fundamental however is the claim that the Plaintiff did not have an insurable interest in the property damaged. It is considered so fundamental because in my thinking it calls the validity of
the insurance contract itself to question. Indeed Counsel for the Defendants goes as far as demanding of the court to 'first of all examine whether the Plaintiff is the insured at all".
Interestingly, when the Defendant pleaded in paragraph 10 of the statement of defence that the Plaintiff had no insurable interest in the raw materials, no factual narration was pleaded as the basis for that conclusive averment. 1 suppose the rules on pleadings would require of the defendants to plead the material facts that formed the basis of that !'iind of defence. Be that as it may, 1 observe that the reason for that defence has been put across in defence Counsel's address.
I shall ignore the procedural glitch associated with the question and consider the argument put forth by Counsel on its merits. Counsel has submitted as follows:
"Trusty Foods Limited was acquired by Expom Ghana Limited by a resolution in 2008. Expom Ghana Limited thus, took over all the assets and liabilities of Trusty Foods including the insurance.
The process of the above acquisition took a bit of time according to the Plaintiff and whilst the process was on going, Plaintiff caused 2nd Defendant to instruct 1st Defendant of the take-over and subsequently paid premium to 1st Defendant Company in the name of Expom Ghana Limited per the endorsement schedule of Exhibit "A".
On the schedule, the insured's name is Expom Ghana Limited which endorsement took effect on 2011 November 2009. A proper due diligence
 
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in the acquisition process clearly indicates that at the time of making premium payments to 1st Defendant in the name of Expom Ghana, the process had not been completed successfully and therefore the Plaintiff cannot be said to have any insurable interest in the raw materials that got damaged by fire on May 10, 2010".
The logical deficit in this argument lies it1 the suggestion that even though Expom had taken over the assets and liabilities of Trusty Foods including the policy, even though the policy had been renewed in the name of Expom, and even though Expom had assumed payments of premiums in its own name, because the take over process was still on going, Expom did not have an insurable interest in the raw materials. That certainly cannot be an acceptable deduction.
Perhaps the argument also did not take into account the recital contained in the endorsement schedule of the renewed policy attached to Exhibit 'H' which sets out the scope of the policy as endorsed by Vanguard itself.
It reads:
"RENEWAL OF POLICY
In consideration of the payment of the renewal premium of US$64,652.48 (equivalent to Euro 50,000.00) the Insurance by this policy is renewed for a period of twelve months from 20th November 2009 to 20th November 2010 and the schedule of the policy is to read as follows:
 
DESCRIPTION
1. "FIRE: All Real and personal property of every kind and description of Expom Ghana Limited's own or for which they may be held responsible including but not limited to Buildings, Plant, Machinery Stocks, Inventory and Equipment as detailed below as well as public and products liability...."
Significantly, in the same schedule the policy No. is given as P-001-5054-2006-060-6 and the insured's name is provided as 'Expom Ghana Ltd.' Trusty Food is not mentioned anywhere.
The renewal therefore created an independent contractual relationship between Vanguard and Expom which had nothing to do with the takeover process.
The Defendant knew that Expom had taken over the assets of Trusty Foods. It could not have underwritten the policy in a vacuum. In the light of the evidence any argument that Expom did not have insurable interest in the stocks will signify a clear misconception of what insurable interest actually implies. What an insurable interest implies in the law of insurance is a belaboured subject and does not require a long list of authorities to make plain.
In IVAMY, "GENERAL PRINCIPLES OF INSURANCE LAW, 2' edition (1990) at page 19, the Learned Authors have written and the statement has received approval in several judicial decisions thus:
 
"Where, as in the case of personal accident insurance and most branches of property insurance, the subject matter of insurance is a physical object exposed to certain perils, an insurable interest is constituted by the fact that the assured, from his relation to the subject matter, will suffer prejudice if the subject matter is lost or damaged by such perils".
See MACDONALD VS CANADA ACCIDENT & FIRE ASSURANCE CO. (1978) 77 DLD (3d) 746
GEISMAR VS SUN ALLIANCE & LONDON INSURANCE LTD (1979) Q B 838. LUCENA VS CRAUFURD 127 ER 630 at 643 (11L)
My understanding of the law is that generally, courts do not look favourably to arguments that an insured had no insurable interest. The reason is that insurable interest is the basic reason why an insurer will issue a legal insurance cover.
The Learned authors of "General Principles of Insurance Law" referred to
supra make this point as follows:
"The inclination of the courts is to find in favour of an insurable interest
wherever the facts of the case and the law applicable permit".
And the words of LORD BRETT MR in the cr se of STOCK VS INGLIS (1884) 12
Q8D 564 at page 571 strongly make this point as follows:
"It is the duty of a court always to lean in favour of an insurable interest, if
possible for it seems to me that after underwriters have received the
premium, the objection that there was no insurable interest is often as
 
nearly as possible, a technical objection, and one which has no real merit, certainly not as between the assured and the insurer".
On this note, I dismiss the defendant's claim that Expom did not have an insurable interest and hold the parties bound by the terms of the policy.
The real question to examine is essentially whether within the limits of the policy the Plaintiff has made a case to warrant the claim made and/or whether sufficient grounds have been demonstrated for the defence to except the claim.
And the nerve centre of making such a determination is the question as to who bears which burden of proving what, and by what standard of proof.
The law is that where an insurance Company has alleged a breach on the part of the insured to repudiate liability the Company bears the burden of proving the breach. What the insured need to do foremost is to show that the policy covers the peril that has occurred. If the insured shows by a prima fade evidence that the damage that has occurred is within the scope of the policy the burden shifts on to the insurer to provc that the damages is in exception due to the alleged breach.
In COLLINUAUX'S LAW OF INSURANCE 7TH edition at 112 paragraphs 4-45 is the following statement;
"The burden of proof is upon the assured to show that the loss was proximately caused by a peril insured against To prove a prima facie case, the assured need not prove how the casualty occurred, or what
 
particular peril caused it, he need merely prove that the cause fell within the perils insured against.... Once the assured has produced a prima facie case the burden shifts to the insurers if they wish to show that it was in fact a cause excepted by the policy which proximately caused the loss".
Similarly, the authors of BULLEN & LEAKE & JACOBS, PRECEDENTS OF PLEADINGS, 13th edition at page 523-524 have stated:
"It is always for a insurer to prove an exception and also for the insurer to prove the breach of a condition which would relieve him from liability in respect of a particular loss".
The case of BOND AIR SERVICES VS HILL (1955) 2 QB 417,; BENNETT VRS YORKSHIRE INSURANCE CO. LTD. (1962) 2 Lloyds Report 270; and FARNAM VS ROYAL INSURANCE CO. LTD. (1976) 2 Lloyds Report 437 are cited for this position.
In the Law Reports of the Commonwealth 1986 edition at page 84 is reported the Indian case of NARVINVA KAMAT & ANOR VRS MARTINS & ORS where the Supreme Court of that country pronounced persuasively on the principle as follows:
"The burden to prove that there was a breach of the contract of insurance was squarely placed on the shoulders of the Insurance Company. It could not be said to have been discharged by it by a mere question in cross examination. The second appellant was under no obligation to furnish evidence so as to enable the insurance company wriggle out of the liability under the contract of insurance. The insurance company could have got
 
the evidence produced to substantiate its allegation. Applying the test, who would fail if no evidence is led, the obvious answer is the insurance Company".
Obviously, paucity of local decisions in insurance cases on this point makes citing of some of them impossible. Nonetheless it is my view that this common law position on burden of proof is in accord with our general rules of evidence which emphasize the point that depending on the particular issue which arises, from time to time in the course of a trial, the burden of proof shifts from party to party.
Having said all that, the immediate question is whether the Plaintiff has shown by prima facie evidence that the cause of the damage fell within the peril insured against.
It is not controverted anywhere in the proceedings that it was fire that caused the damage in question. I doubt if any need arose to call evidence on that The Plaintiff also tendered Exhibit "H", the renewed policy which clearly shows that fire was one of the perils insured against. The Plaintiff therefore showed the prima facie evidence required of it to shift the burden on to the defence to prove the exception alleged. I shall consider separately the various grounds set out by the defendant in repudiating liability.
I do so because depending on the gravity of the allegation, the standard of proof shall vary. First, the Defendant alleges arson on the part of the Plaintiff in causing the damage.
 
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It is pleaded in paragraph 11 of the statement of defence thus:
"11.	Defendants in further denial of paragraph 11 of the statement of
claim say that they have reason to believe that the Plaintiff deliberately
caused the fire that destroyed the goods and raw materials":
Related closely to this claim are the averments contained in paragraphs 12, 13
and 18 of the same process.
"12.	Defendants will contend at the trial that at all material times the
Plaintiff was aware that the raw materials and goods purportedly
destroyed by the fire had expired or were about to expire.
13. Defendants will further contend at the trial that the Plaintiff took
calculated steps to prepare the grounds for this claim and that this claim
is actuated by malice.
18. Defendants will further contend at the trial that the events leading to
the fire show that Plaintiff made calculated attempts to cause the fire so
as to make an undue claim on stock which had already lost their value".
What all these averments read together mean is no doubt that, the defendant is alleging criminality on the part of the Plaintiff. I do agree that within the tenets of the insurance policy, these alleged acts if proven constitute ample basis for the defendants to repudiate liability.
 
The Policy without doubt does not cover "loss or damage occasioned by the willful act" of the Plaintiff or its agents just as it does not cover "loss or damage where any inmate or member of the insured's household or any of his business staff is concerned as principal or accessory; or less or damage due to the willful or negligent act or with the connivance of the insured"
With the instant allegation being criminal in nature and being directly in issue, I am certain that the standard of proof pursuant to Section 13 (1 ) of the Evidence Act NRCD 323 is proof beyond reasonable doubt. Going through the written submission of defence Counsel I notice that somehow, this criminal standard in our statute is ignored and a different standard of proof adopted.
I also noticed that even though in the statement of defence the alleged willful act of setting the fire was pleaded separately from fraud, Counsel in the address has subsumed the alleged arson conduct under fraud and examined it as fraud. Whilst one may argue that willfully setting fire on a property to make a false insurance claim is itself fraudulent a conduct, since the act of setting the fire is itself a criminal conduct separate from the motive, and given the manner in which the allegations have been pleaded and the fraud particularized, each allegation had to be examined separately. Be that as it may, I suppose the duty of the court is to examine the merits of the evidence adduced to prove the allegations.
In prescribing the standard of proof which I find to be out of tune with our law Learned Counsel for the Defendant submitted as follows:
 

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"In fraudulent claims, the burden of proof is on the insurer who alleges fraud on the part of the insured. The standard of proving this is slightly higher than the preponderance of probability in civil cases but not as high as beyond reasonable doubt in criminal cases".
It is important to mention that in referring to "fraudulent claims" Counsel was
referring to the alleged willful act of setting the fire. That being the case then
this court does not accept the standard of proof indicated.
In the oft cited case FENUKU & ANOR VRS JOHN TEYE (2001-2002) 2 GLR
985 at page 003, the supreme court considers Section 13 (1) of the Evidence
Act and states:
"With regard to proof of forgery or for that matter any allegation of a criminal act in a civil trial, one cannot go outside that statutory provisions. In this country, the position is governed by section 13 (1) of the Evidence Decree 1975 (NRCD 323) and no amount of foreign authorities, however persuasive can dislodge this requirement of the law. It provides:
13 (1) in any civil or criminal act the burden of persuasion as to the
commission by a party of a crime which is directly in issue requires proof
beyond reasonable doubt. Generally in a civil trial, the burden of persuasion is on a preponderance of probabilities. Where, however, a
criminal act is in issue in a civil trial, the burden of persuasion requires
proof beyond reasonable doubt, though the sufficiency of that evidence
 
required to attain that standard would depend to a large extent on the gravity of that particular offence".
The allegation here in sum is that the Plaintiff, knowing well that the stock of raw materials were either expired or near expiry, took calculated steps and willfully set the fire on them in order to claim on the policy.
What evidence was adduced to prove this allegation beyond reasonable doubt?
Counsel for the Plaintiff thinks that no evidence was adduced to prove that the fire was willfully set. He submitted thus:
"Like the charge of negligence, Ft defendant also provided no evidence of arson. 1s, Defendant suggested to M:. Domenico Falcone during cross- examination that there were some email correspondences between Domenico Falcone and Mr. Walter Russo regarding the fire. This was denied by Mr. Falcone. When it was Ft defendant's turn to adduce evidence to substantiate this point, no scillinta of evidence was adduced on this point...."
My understanding of the Plaintiff's Counsel's position that the defendant did not adduce evidence to prove the willful act is that there was no direct evidence as opposed to circumstantial evidence to prove the allegation. If this understanding is accurate, then, I take it that both Counsel agree that the evidence on record to prove the allegation is purely circumstantial.
 
Indeed no scillinta of direct evidence was adduced and Learned Defence Counsel in her address does not allude to a single direct evidence. She invites the court to consider a number of factors as constituting the circumstantial evidence in proof of the allegation. She then cites a number of external authorities where the courts have considered circumstantial evidence as proof of allegations of the nature being considered.
I do agree with Defence Counsel that the instant allegation could be proved by circumstantial evidence. I however have to point it out that under our law circumstantial evidence is relied upon to draw conclusions where there was no co existing circumstance which would weaken the inference. In other words circumstantial evidence had to be acted upon only when the circumstances had, of necessity to be inferred and that the facts led to no other conclusion. Put in another way, the circumstances must exclude any other rational conclusion and must lead as is usually said, to the irresistible conclusion that the crime was actually committed.
See DUAH VS THE REPUBLIC (1987/88) 1 GLR 343.
And I sounded the above caution on the assumption that the factors listed in Defence Counsel's address as constituting circumstantial were founded cogent and backed by the evidence on record. If they were not, then in my view they cannot constitute circumstantial evidence in the first place to afford the court draw the necessary inference. It has become necessary to make this point because a cursory glance at the list of fifteen (15) or so factors indicated by Counsel prompts questions as to how some of them were obtained.
 
For instance under paragraph 14 of the list, a statement has been made as
follows:
"14. Plaintiff was in distress, production had declined and plans were
underway to sell the Company
I do not know where this information was constituted. Nobody from the record said so, the defence did not plead this and no evidence was adduced to establish this fact. It is a complete fabrication. Judging from the way certain factors have been bandied around, I am compelled to sacrifice brevity and examine the list set out in the address. Perhaps that is the only way their credibility could be ascertained as established facts. It has become even necessary for me to analyse the list because a part from a few of them, the rest were not based on pleaded facts. They were raised whilst the trial was on going and after the Plaintiff had closed its case.
In this consideration, I shall however not follow any particular order and where it is not backed by any evidence, I shall simply say so. Also where two or more tie in and can be resolved together, I shall not hesitate to do so. The first to consider states:
Plaintiff Knew or had reason to believe that the 12, 246 bins/boxes of raw  tomato paste packed in its compound had expired or were near expiration and  that it could not process all of them prior to their expiry.
First of all there was no evidence that any of the raw material had actually
expired. The Defendant's own witness Detective Sgt. Okuampah who said he
removed exhibit 16 (i.e. a label from one of the burnt bins) could at best show
 
that the paste had five S more months to run before expiration. He gave the following answers under cross examination:
"Q Assuming without admitting that this is the expiry date, it reads 2611 September 2010 for a raw material. The Company was in production when you went there that is true.
A:	That is true
Q:	When did the fire take place
A:	That was in May.
Q:	So from May to September, how many months will that be
A:	Five months
Q:	That Company was in production at the time ofthefire
A:	That is so my Lord
Q: So if the product was to expire in September the raw material could have been used in production to get the finished product before the expiry date.
A: The materials that they were using were in their warehouse which they had us into the warehouse but this was on isolated place in the Compound.
Q:	Would they still have used this in their production before September.
A:	Icannot tell
Another Defence witness whose evidence touched on the question of expiration of the raw materials was Mr. Ebenezer Kofi Essel from the Food & Drugs Board. He did not state that any raw materials were expired or were near expiry. He recounted an event where the board ordered certain raw
 
materials imported by Expom to be destroyed and the reason was that when they were shipped into the Country and went through the GC NET system, it was discovered that the products were bloated spilling and maggot infested. He said when the board ordered the destruction Expom complied with the order.
He said the following under cross-examination:
Q:	The products were not destroyed because they were expired but they were destroyed because of the spilling...."
A:	Yes my Lord
Q:	Mr. Essel read Exhibit '19' the last bit of it which you read to the court that if the Plaintiff did not comply with certain regulation you
were going to close the company down. To your knowledge was the company ever closed down after you sent them the order?
A: My Lord, I will not be in the position to say this because the plaintiff complied with this order. When this letter was sent to them. They complied and we have a report that effect that the destruction was carried out".
Witness also stated under cross-examination that as part of their monitoring duties, they monitored raw materials that Expom imported into the Country. From the testimonies of those two witnesses who indeed were the defendants own witness, none of the raw materials was expired and the ones closest to expiry had 5 months to run.
 
The Plaintiffs Managing Director Domenico Falcone explained how significant a period of S months in the life of the raw materials was. He said this in his evidence-in-chief.
"Q: They are also saying that you caused the fire to get rid of the goods that were expired or nearing expiry
A: My Lord that is also not true. The nearest expiry date was five (5) months. But again these were raw materials which can even be used a day to its expiration and get the finished product with two (2) years shelf life. In other words! could produce and even sell it in two (2) years time".
Also important to note is the evidence of the Plaintiff's stock Manager Rosario Parlato that, in their production, they did not always deal with the raw materials in first come first used basis. Sometimes they selected the materials in a mixed up fashion.
He said the following under cross-examination:
'9: Do you maintain the practice of first come first served of your raw material
A: Yes, but I want to explain during the production, we have some characteristics or specs that we should get during the production. In all over the world tomato paste are not the same. For instance tomato concentrates from USA and Italy are very thick but that from china is of different quality. In Exhibit 'P'from example there is something like that there. We see that the first goods that we imported in March 2009, in percentages almost all was used. In
 
general we use first in first out so the first goods that come we put it outside. But it is also true that we have some specification that the customers are asking for so sometimes we have to take a different batch code to get that characteristics or quality".
Domenico Falcone himself made a similar statement under cross- examination as follow:
"Q: So it means in order to ensure that your concentrates do not expire you will by all means process the first one before you process the second one?
A:	No, I have also answered this question before.
We don't process based what arrived earlier but based on different factors. We have different suppliers and to quality can be slightly different but even between the same suppliers the batch numbers are different which means that the goods were on different days and the quality could be different. Some can have a very red colour or some can also have a very high thickness among others. And we consider these when we receive an order because some customers prefer some particular type but we also have the premium brand where we give or course higher quality product. We consider all these factors before criJosing what to process. And it may happen that we may choose something that has just arrived instead of something that had arrived 1 year before because we still have another 1 year to process it".
 
This evidence was not controverted. The effect of this explanation is that it was not always the case that the batch of raw materials closest to expiry had to necessarily wait till the very last day.
Even if it did, it could still be used and the finished product will still have the 2 years shelf life.
From the evidence, the defendant could not prove the crucial part of its case that the raw materials were expired or near expiration.
Significantly, the defendants' failure to prove this claim tremendously diminishes the motive ascribed to the plaintiff to desire to burn the product. Mr. Domenico Falcone makes this point in his evidence-in-chief.
"Q: They are also saying that the fire outbreak was as a result of a deliberate act?
A: It is not true. My Lord, I want to explain that these were raw materials and ifyou process them, you would get more. So why should we destroy them and claim the value of the raw materials"
Closely related to the above point is the claim that the:
"The stock of tomato paste in drums /bins had been packed in a bushy and muddy area on Plaintiffs compound, exposed them to the vagaries of the weather when it has sufficient space in the warehouse to store them".
The first question to ask on this point is whether, the place where the raw materials were kept had been so bushy and muddy at the time the fire occurred. The question is pertinent because the defence witness who
 
describes the place as such went there some time after the fire when the place
had been abandoned due to on going investigations.
Detective Sgt. Okuampah who particularly attests to that scene went to the place on the 11/7/2010 about two (2) months after the fire. When it was suggested to him under cross examination that he found the place in that state because due to on going investigation, the place had been left in that state, he said he did not believe so.
I did not find his answer convincing simply because he had not had the benefit of visiting the place prior to the outbreak or even immediately thereafter. The explanation that the place looked bushy and muddy because the place had been left so after the outbreak makes a lot of sense. One point which this court cannot gloss over is the fact that the premises of Expom was a custom bonded warehouse. At all material times before the fire the raw materials
were under the supervision of CEPS becc.use of the in bond arrangement where the Plaintiff had to produce before paying tax on the imports. According to the Plaintiffs stocks Manager because of this arrangement, a custom officer was always inside the factory to check on the goods before parts are taken for production. I do not believe that customs will supervise raw materials in that bushy and muddy area which is their bonded warehouse. There is also the evidence that forklift was used to pick the bins and drums of paste. It cannot be suggested reasonably that the forklift was operated through the mud and the bush.
 
Again, the evidence does not show that, the raw materials had previously been kept elsewhere and because of the plan to set them ablaze they were brought to that portion of the premises. According to the stocks Manager the raw tomato paste had always been kept at that place where they had the most space whilst the cans are kept inside because of rains.
In the light of the evidence that, that particular place is where the Plaintiff had been keeping its raw materials from the beginning, and given the lack of evidence that the place had been so bushy and muddy at the time of the outbreak, it cannot be said that, that is evidence of a plan to set the raw materials ablaze.
Still on the stocks, it has been said that between February and August 2009, the Plaintiff imported 14,288 bins/boxes but had used only 2,042 and that the Plaintiff had kept on importing new stock and rather used it in production whilst failing to testify as to plans it had for that large stock of tomato paste (see 12 and 13 on the list).
First of all it is not said anywhere in the evidence that the Plaintiff imported raw materials and used them out of turn and left old stock unused. That is another fabrication. I think I have pointed out from the evidence of the Plaintiff's stock Manager how they picked the raw materials from the stock for production. It was not always on first come first used basis. Some times if they needed a particular specification for a particular quality they chose from the appropriate batch. And to suggest also that the Plaintiff kept on importing when they had stock only to set them ablaze leads to a conclusion that the
 
Plaintiff deliberately spent money and resources to import and burn to make insurance claim. That is an absurdity. In any case it was not shown that the Plaintiff did not have the capacity to process the stock of paste before the expiry dates.
Circumstantial evidence was also sought to be generated out of the how bins and drums had been arranged and what has been described as the pattern of burn. The three (3) factors listed can be considered together. They were listed as follows:
"9. Bins/Drums had been arranged by Plaintiff in a horse-shoe shape and
after the fire, the vacant middle portion had debris of charcoal
indicating that prior to the fire, the middle portion had been packed
with wooden pallets to accelerate the burning.
10.	Failure of Plaintiff to adduced evidence to explain the purpose of the
empty wooden pallet in the middle of the horse shoe arrangement.
11.	Undenied evidence on record that the pattern of burn was from the
middle outwards".
Reading those three (3) statements together, the impression sought to be created is that the bins and drums were deliberately arranged in the so called horse shoe pattern, with the middle part stacked with wooden pallets to start the burning.
This allusion emanates from the evidence of defence witness, Divisional Fire Officer Owusu Adjei.
 
Interestingly, if his evidence is read as a whole, it does not support the defendant's circumstantial evidence that the Plaintiff deliberately set the materials ablaze.
Having given the description of the arrangement, the fire expert said that from his investigation he could not trace the seat of fire.
He stated as follows in his evidence-in-chief:
"Q: You made some analysis of burn, do you want to add anything
A: Yes the analysis of burn you could see that the middle part was really burnt so that was where the intensity was located. You could then see that the pattern of burn was from the middle outwards.
Q: Ifyou say the fire was from the middle outwards why do you then say that no specific seat offire could be identified because if that is where the fire was intensified then that could be the seat
A: No it does not necessarily mean that when you have intense burning, it's seat The seat could start from a small area and then propagate to a bigger area where there are a lot of combustible elements and so you could have an extensive burn even at a place where it is not the seat offire".
The most critical point is the conclusion the fire expert drew.
"Q: Did you draw any conclusions from your investigations
A: Yes after we had analysed, we came to the conclusion that looking at the risk exposures of the products, we could see that no specific cause offire could be pinpointed to, so we saw that the risk exposures were electricity and the fact that a naked light could be introduced to that
 
place so in that case it was the probable causes, we couldn't get a
specific cause so we then alluded it to electrical fault or introduction
of a naked light".
This is the Defendants own witness speaking.
The scenario is this;
The Defendant seeks to make the case that the Plaintiff willfully set fire to the raw materials and seeks to prove it by circumstantial evidence. And the defence calls a fire expert whose conclusion is that electrical fault was a probable cause of the fire. Can it then be said that that circumstantial evidence leads to an irresistible conclusion that the Plaintiff willfully set the fire? I think far from that. What is worse, the fire officer whose report comes after an initial fire report vouched for the validity of the initial report.
The initial report is in evidence as Exhibit "L" which specifically attributes the
cause of the fire to an electrical fault.
I think rather than strengthen it, the evidence of the Defendant's fire expert
weakens the defence as far as the claim of arson is concerned. Then about the
dogs in the cage also, there was no evidence that the dogs on the premises had
previously been released at nights to guard the yard. The fact therefore that
they were in the cage in the night of the fire was a routine occurrence.
The 1st Defendant further alleges that prior to the fire outbreak the Plaintiff
had inquired to know whether the 1st Defendant could issue a policy to cover
 
tomato paste that had deteriorated. The 1st Defendant pleaded this in paragraph 19 of the statement of defence as follows:
"19 Defendant state that prior to the fire incident the Plaintiff sought to know from the 2nd whether the Pt Defendant could issue an insurance policy to cover raw tomato paste if the tomato paste deteriorated before it was used for production but 2;d Defendant indicated that it could not issue such a policy."
This averment was denied by the Plaintiff in the reply.
Surprisingly the broker from whom the sad inquiry was allegedly made did not plead this in its statement of defence. Be that as it may with the Plaintiff denying this, a duty was cast on the Defendant to have called the broker to give corroborative evidence to prove this especially so when the alleged inquiry was not made directly from the Defendant. The least the defendant could have done to prove this allegation was to have called the alleged recipient of the inquiry (2h11 Defendant) to attest to it. This was not done and even when the representative of 2' Defendant was in the box the Defendant failed to seek a confirmation from her. This allegation remains unproven and cannot form the basis for the court to draw the inference urged upon it. On the authority of the oft cited case of MAJOLA GRE VRS LARD! (1959) 1 GLR 190 what the Defendant's Representative Charles Ansong Dankyi sought to do was to repeat an averment on oath which does not amount to proof.
 
In any case, by this court's earlier finding on the basis of the defendant's own
witness's account that no tomato paste had deteriorated, that allegation
speaks of nothing.
Perhaps the strongest circumstantial evidence relied on by the Defendant to prove the allegation that the Plaintiff willfully set the raw materials ablaze is the fact that prior to the fire the Plaintiff had sent home the 11 or so security men on duty and replaced them with its own workers who were a driver and a carpenter on grounds of an alleged theft of money in the Plaintiffs offices.
According to the Defendant this was part of the scheme to pave the way for the Plaintiff to embark on the alleged ungodly venture that night. It is not in doubt that the Plaintiff sent away the 11 security men and replaced them with Zakaria Awudi and Seth Awuley a driver and carpenter respectively on the day of the fire. Admittedly, this act should arouse a very strong suspicion. But the Plaintiffs explanation as given by Domenico Falcone was that, there had been cases of theft previously. In one instance a report had been made to the police but nothing came out of it. On this occasion one Senior Officer Mr. Gyenaro found in his office that a drawer had been broken into and money taken away.
Falcone said he himself was not around at the time but Gyenaro called their boss in Italy one Mr. Russo who instructed that the security men be sent away to send a strong lesson to them and resolve the issue with their principals later.
 
I shall in a short while comment on this explanation in particular whether the action taken was appropriate. But I think it is important first of all to determine whether the alleged theft actually took place.
Detective Lance Corporal George Anyima Mensah who conducted an investigation into the cause of the fire stated that when he got to the premises he was told about the theft that had occurred and he confirmed it. His evidence was as follows:
"1 asked the director of the company why such a big company like Expom had just skeleton (sic) security men at post. And my lord, he informed me that they had competent security men from K9 and Ex force Security company but a day before the incident they detected that somebody had broken into one of their drawers in one of the offices and stole (sic) an unspecified amount of money. Due to that they asked their bosses to withdraw them for the meantime whilst they make an alternative arrangement, if possible to change those who were on duty that day."
Witness continued as follows:
"My lord I asked him to lead me to the offices where this alleged theft took place. I was led to one first office just after you enter their administration block My lord, they showed me the drawer in which the money was before the theft took place. On inspection, although I didn't find much on the door, it was clear that the drawer had been forced open with some implement"
 
Both, Seth Awuley and Zakaria Awudi corroborated the evidence of the break
in saying they went to see it for themselves.
Awule went further to say that he was made to fix the broken drawer later.
He said so under cross-examination thus
"Q: This drawer that you were talking about were you called to fix it.
A:	I fixed it later."
Contrary evidence was adduced by the defence through Detective Sgt.
Okouampah who said that when he went to do his investigation he did not see
any sign of a break in on the drawer.
He testified as follows:
"So with him and the HR'S assistance, we all moved to the office of the Managing Director one Domenico Falcone and! explained why I am there. From there I moved to the office of the Technician who alleged his office was broken into and monies stolen from his drawer, but nothing of that sort was detected."
Noticeably Exhibit Y is the report produced by Sgt. Okouampa on his
investigation.
Under cross-examination of Sgt. Okuampah I think his own answers show how
his account about the drawer is not reliable. The following ensued:
"Q: Mr. Okuampah the Detective who did the earlier investigation, the
one who had first hand knowledge of the incident was in this court and
testified that the day he went to the scene that is Monday after the fire he
 
saw visible signs of a break in, in the drawer the alleged theft took place in but in your report two months after the incident you said you saw no signs of a break in.
A:	That is so my lord.
Q:	But the company was working after the fire outbreak and in between the time that you went there is that not so.
A:	Yes.
Q:	So they could have fixed the broken drawer in the two months before you went there.
A:	This could be so.
Q: So the fact that there was no visible sign when you went there was because they may have fixed it and that it could have happened the day they reported that there was a theft at the place.
A:	It's possible."
These answers clearly put the mind of the court beyond doubt that the account of Corporal Anyimah I'vlensah is preferable to the unreliable evidence of Sgt. Okuampah.
With all the evidence considered I make a finding of fact that t he theft actually took place.
Notwithstanding the theft, I am of the view that sending away the entire security detail and replacing them with Awuley and Awudi was inappropriate a decision to take in the circumstances of the case. Especially so when both
 
Awuley and Awudi were not on premises at the time and had to be called from home. The security men in the view of the court could have been made to stay on whilst their principals were sent for, for the matter to be resolved. The decision to send all of them away though I find inappropriate, is however not in itself sufficient to lead me to the conclusion that the Plaintiff did so in order to set the place. The fact that the action arouses suspicion does not mean that it was not taken for a genuine reason, more so when undoubtedly the decision was taken upon orders from a superior officer, Walter Russo in Italy. The standard is proof beyond reasonable doubt and a mere suspicion is not enough. Finally, the impression sought to be created that, the Plaintiff all of a sudden went to pay all arrears of premium in April is misleading.
The evidence of Domenico Falcone considered as a whole shows that though the Plaintiff did not pay in November when it was supposed to pay, it paid in several stages and the final payment made in April. This should not be understood to mean that the Plaintiff rushed to pay the outstanding premium in April because it planned to burn the place in May.
I have painstakingly examined the totality of the allegation put forth as constituting circumstantial evidence of proof of the alleged deliberate act of burning down the raw materials. As i~ has been shown, some of the allegations were unfounded, some, not established as facts, others fabricated, and on the conclusions that I have drawn on them, they, when put together cannot constitute any reliable circumstantial evidence out of which the court can infer that the Plaintiff willfully set the materials ablaze.
 
I accordingly dismiss the Defendant's claim that the Plaintiff deliberately set fire to the raw materials to make a claim.
Having said all that, let me put on record that it was never the duty of the Plaintiff to prove that the fire was due to an electric fault.
Earlier in this delivery I referred to BULLEN & LEAKE & JACOBS PRECEDENTS OF PLEADINGS on the question of burden of proof. But at page 533 of their 1311) edition,
the authors make specific point on fire insurance which I find very instructive. They state:
"Damage by 'fire" occurs if there is damage by ignition of the property insured. A fire is always caused by combustion but combustion does not always cause fire. if property is damaged by fire then the cause ofthefire is immaterial, unless the fire was started deliberately by the insured himself. The Plaintiff need not prove the cause of the fire. It is for a defendant insurer to assert and prove that the fire was caused by the deliberate act of the insured or that he was privy to the arson."
The authors cite the cases of SLA4TTERY V MA4NCE (1962) 1BQ 676 and THE A4LEXJON HOPE (1988)1 Lloyds Rep 311 for his view.
On account of this principle, which I approve of, and with the defendant's failure to prove that the Plaintiff deliberately set the fire the question about the cause of fire is immaterial and the Plaintiff bears no burden of proving the electrical fault.
 
Even if the question still fell for determination as to whether the Plaintiff adduced evidence to prove the electrical fault, I answer it in the affirmative. The Plaintiff tendered two reports from the Ghana Police Service and the Ghana National Fire Service which were received in evidence as Exhibits "K" and "U' respectively. Both reports indicated that the cause of the fire was electrical. Also tendered by the Plaintiff was Exhibit "V" which confirms the cause of the fire to be electrical.
Even Exhibit "Y" which I have already referred to as having been prepared by
the fire expert called to give evidence by the defence gave electrical fault as a
probable cause of the fire.
In the Defendant's attempt to diffuse the overwhelming evidence that the cause of the fire was electrical, one Engineer Joseph William Anguah was called to testify that the cause of the fire could not have been due to electrical fault. Admittedly, Ing Anguah has an impressive C.V. but regrettably his expert opinion does not pass the credibility test. He had visited the scene about 2 years after the fire. At the time he did, he knew this matter was in court and that the Defendant's entrenched position was that the place was deliberately set ablaze by the Plaintiff. He had been solicited by the Defendant and most probably had been paid by them to go to the scene and soon thereafter appear in court to give evidence. I received his evidence with a lot of suspicion as he was most likely to do the bidding of his client the defendant.
 
Learned Counsel for the Plaintiff drew the court's attention to the provisions in Section 80(1) of the Evidence Act 1975 NRCD 323. The provision there provide the guide to the court in determining the credibility of the witness.
Under Section 80(2) the matters relevant to the determination of the credibility of a witness include:
"(c) the existence or nonexistence of bias, interest or other motive."
I strongly believe that Ing. Anguah went to the scene with his biases actuated by the defendant's position and interest in the matter and that he came to this court well motivated to execute the defendant's schedule. I did not believe him.
In any case the entrenched opinion of Ing. Anguah that electrical fault was out of the question conflicts with the opinion of the Defendant's own fire expert who had gone to the scene much earlier in time and who mentioned electrical fault as a probable cause of the fire. This shows the apparent inconsistency in the defence on this issue. I fail to throw away the overwhelming evidence on record that the fire was caused by electrical fault in preference to the opinion of Ing. Anguah.
I find sufficient evidence on record to attribute the cause of fire to electrical fault and so is the finding of the court. This position leads me to hold that there was no malice on the part of the Plaintiff as far as the burning of the raw materials is concerned.
I now proceed to consider the other defences pleaded by the Defendant in the statement of defence. But before I do so, there is one matter which arose in the course of the evidence about a suit between Trusty Foods Ltd. and a
 
company called THONKET which is pending in the High Court Kumasi. Technically, Expom is not a party to that suit but I suppose because of the corporate relationship between Expom and Trusty Foods, the defence roped those proceedings into this one to make up a case. In those proceedings an order was made in that court for some finished products supplied to Thonket by Trusty Foods to be destroyed because they were unwholesome. The case sought to be made out of this was that those products were made from expired or about to expire raw materials and that informs the plan by Expom to burn its raw materials expired or about to expire in order to make the instant claim.
I find the conclusion drawn by the defence bizarre. There is nothing to show that the finished product destroyed in that suit were produced from the Plaintiff's raw materials. The subject matter of that suit was finished products which Thonket was unable to sell and which expired on its shell It had absolutely no connection with Expom and its raw materials which got burnt. I dare say that this whole Thonket's story represents one of the desperate attempts by the Defendant to wriggle out of liability by every conceivable excuse.
It is not relevant to the real issues in this case.
Now, Defendant has pleaded misrepresentation on the part of the Plaintiff
Again contrary to the rules on pleadings no particulars were provided. Be that as it may it was further alleged in another averment that the Plaintiff fraudulently misrepresented to the Defendant that it was the same legal entity as Trusty Foods. Did the Defendant adduce evidence to prove this? I do not find any evidence of any misrepresentation much less it being fraudulent. On
 
the contrary the Defendant's representative Charles Ansong Dankyi in his evidence admitted that he knew Expom Ghana Ltd. and that Expom had a policy of insurance with Vanguard. If Vanguard had been in any confusion whatsoever between Expom and Trusty foods, witness who said he was head of broker relations department with oversight responsibility of business matters would have said so.
The broker through whom the defendant dealt with the Plaintiff did not allude to any such misrepresentation and the question was not put across to them anywhere in their evidence. The averments therefore remained a bare assertion.
The Defendant also pleaded fraud particulais of which were given as follows:
'(a) Fraudulently misrepresenting to the defendants its relationship with Trusty Foods Ltd.
(b)	Deliberately omitting to submit vital document in respect of its operation immediately prior to the fire with the view of deceiving the 1st Defendant into paying the claim.
(c)	Deliberately causing the fire with the view to making afalse claim."
I do not find it useful to comment on the particulars given under paragraphs (a) and (b) as I have had the opportunity of dealing with those issues earlier in the course of this delivery.
For the particulars given in paragraph (b) I wonder how they amount to fraud.
As Counsel for the Plaintiff posed the question: "How does failure to submit documents to another amount to fraud? As the principle is well known fraud
 
involves a representation of an existing fact made dishonestly without belief in its truth or without caring whether it be true or not and intended to be relied upon by the other party and which the other party actually relies upon to suffer a damage.
There is authority to say that any allegation of fraud should possess of these ingredients.
I have had a number of occasions to cite the caution of the Supreme Court contained in the case of OKWEI MENSA4H V LA4RYEA (2011) 1 SCGLR 31 D which in the words of ANIN YEBOAH JSC was expressed thus:
"In the particulars of fraud stated in the instant case, it was not averred that there was misrepresentation offacts which the defendants had made dishonestly by word or conduct with knowledge that same was false and intended for the Plaintiff to rely on it to his detriment. Indeed, a careful perusal of the particulars above does not in the least conform with any standard known to rules of procedure relating to pleading fraud in a statement of claim. It must be pointed out thatfraud qua fraud is such a serious allegation in legal proceedings that it should not be pleaded when Counsel could not, from available instructions form a strong opinion in favour of it."
This is the context in which I view the particulars contained in the paragraph in question. It does not constitute fraud I do not find any evidence in support of it and I dismiss the allegation it purports to contain.
With all the facts considered and the evidence examined, I come to the conclusion that the Defendant could not establish any breach on the part of
 
the Plaintiff which could warrant a repudiation of liability in the policy neither
is the contract itself vitiated in any way.
I hold that the Defendant is bound to indemnify the Plaintiff for the loss
suffered as the result of the fire in fulfillment of the terms of the policy.
In Halsbury Laws of England 4th edition volume 25 the Learned authors have
written in paragraph 653 as follows:
"Measure of Indemnity"
"The assured is not fully indemnified unless, so far as money can do it he is
restored to the position existing at the time of the fire. The amount
recoverable must therefore be measured by the amount of his loss, that is
to say by the value which the fire has taken from his property."
In paragraph 652, the authors have further written.
"No Recovery beyond the sum assured"
"Afire policy always specifies the sum insured which merely represents the
maximum sum for which the insurer accepts liability. Unless the policy is
a valued policy, the assured does not in the event of a loss become entitled
to be paid it as a matter of course. What he is entitled to is a full
indemnity within the limits of the policy. He cannot recover more than the
sum assured even though the amount of the loss exceeds it and he cannot
recover even the sum insured unless he proves a loss to that amount."
The implication of this is that the Plaintiff has to prove the quantum of loss
suffered to determine the amount of indemnity.
 
It is not in doubt that the sum assured was 5 million Euros. The Plaintiff claims that the loss suffered amounts to 4,942,311.53 Euros. The Plaintiff is not entitled to recover the 5 million Euros. What the Plaintiff is entitled to recover is the 4,942,311.53 and even that, it had to prove it.
The Plaintiff's case is that the said amount represents the value of 12,246 drums and bins of tomato paste that were destroyed in the fire. Domenico Falcone in his evidence tendered Exhibit 'NI', 'P', 'Q' and 'R' as the main documents of proof.
Exhibit 'NI' indicates the Plaintiffs tomato paste import details from 2008 to 2010 Exhibit 'P' indicates the import documents including commercial invoices, import declaration forms and bills of lading.
Exhibit 'Q' according to the Plaintiff represents the value of the tomato paste that was damaged in the fire whilst Exhibit 'R' represents the value of other stocks.
In his own words, Falcone said of Exhibit 'NI'.
"Q: Please take a look at this and tell the court what it is A:	This is tomato paste import details"
He said of Exhibit 'P'
"A: These are the documents I was talking about. The invoices of the supply, tomato paste import derlaration form and a copy of bill of lading of the whole goods destroyed".
 
He also said of Exhibit 'Q'
"A: This is the computation of the tomato paste that was damage (SIC).
And this is also the list of stock holdings as at 10th May in our
warehouse.
All these (SIC) information were given the police and copied to the
insurer"
Under cross-examination, Falcone admitted his limited knowledge on the details of the stocks and offered to produce his stock Manager who compiled the documents. Mr. Rosario Palato in his evidence attested to the Exhibits as those compiled by him and gave some details of their contents. Material to the quantity of the bins and drums destroyed in the fire, the following ensued whilst Rosario Palato was under cross-examination.
"Q: Turn to page 3 of Exhibit 'Q' and give us the total of the quantity
imported from February 2009 to August 2009?
A:	14,288 that is if I haven't made Gay mistake
Q:	Please go to the second page of Exhibit 'Q' the very first column says
"in stock"— could you add up for me?
A:	12,246"
Further in the course of cross-examination, Learned Defence Counsel asked
the following question.
"Q: Out of Exhibit 'Q' of the total that you imported that we
acknowledge that you imported the total value amount to 14,288
 


 
and from your Exhibit 'Q' again the total that you had in stock that were damaged were 12,246
A:	Yes".
It does appear that Counsel conceded finally that the total stock damaged was 12,246, hence she put the following question across.
"Q: in putting it to you that, that you had used 2,042 out of a total import of 14,288 and 12,246 were damaged".
I think the Plaintiff adduced sufficient documentary and oral evidence to prove that a total of 12,246 bins drums were damaged by the fire.
There is no evidence to show that any of those bins and drums of tomato paste could be salvaged. The evidence shows that after the fire, the plaintiff extended a request to the Standard Board to test whether any of those was whole some. The analytical report from Standard Board is in evidence as Exhibit 'U'.
The board reports as follows:
REMARKS:
"The samples were picked at random from eleven barrels out of about twelve thousand two hundred and forty six drums and bins. All samples had unpleasant smell and were dark in colour which is uncharacteristic of tomato paste. The batch numbers could not be identified as a result of the fire outbreak Most of the samples at the factory premises were
 
•
p •
 
completely burnt to ashes, others were partially burnt and the rest of them were exposed to excessive heat from fire. The wholesomeness of the tomato paste concentrate analysed cannot be guaranteed and therefore should be destroyed".
In her written address, Learned Counsel fo:. the Defendant construed Exhibit 'R' to say that goods to the value of 9,018,956.11 were salvaged and therefore that amount has to be deducted from the sum being claimed assuming the Plaintiff is entitled to any claim.
Once again that point was misconceived and I suppose the import of Exhibit 'R' was misunderstood. The evidence adduced is that as far as the 12,246 drums and bins were concerned nothing was salvaged and that is clearly buttressed by Exhibit 'U'. Exhibit 'R' only shows other stocks that the Plaintiff had at the time which had no contact with the fire.
I think on the whole, the Plaintiff adduced sufficient documentary and oral
evidence to prove the claim. The defence did not adduce any contrary
evidence disputing the qua