Wakilii

National Insurance Corporation v Pelican Air Services (Civil Appeal No. 15 of 2003)

Court of Appeal · [2004] UGCA 42 · 2004 Appeal Dismissed ✦ AI-generated summary ↓ Download
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court (Commercial Division) judgment awarding damages on an insurance claim
Decision
Appeal dismissed; High Court award of damages to the respondent upheld

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Treatment recorded in citing cases followed in 7 · applied in 1 Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions — always read the source judgment before relying on it.

Holding

The Court of Appeal dismissed the insurer's appeal against a High Court award on an aircraft insurance claim. It held that the trial judge was justified under section 56(1)(i) of the Evidence Act in taking judicial notice of insecurity in Eastern DRC, particularly where the appellant had not challenged that averment in pleadings or cross-examination. A ground of appeal that merely narrates the trial judge's statements without specifying points wrongly decided breaches Rule 85(1) and is incompetent. The emergency expenses fell within the 10% limit and, in any event, breach of that clause would not entitle rescission. The insurer's manager had ostensible authority to consent to repairs, and the unpleaded defence of insurable interest could not be raised at submissions.

Facts

The respondent insured its Piper Aircraft P.A. 32-300 (Registration SX-RPR) with the appellant for twelve months from 22 April 1997. The aircraft had an accident at Watsa/Bunia in the DRC in July 1997. The respondent reported the accident verbally to Mr. Ochieng, the appellant's Marine Re-Insurance Manager who had signed the policy, on 28 July 1997. On Ochieng's advice the respondent contacted the Civil Aviation Authority for an assessment and later removed and repaired the aircraft in Nairobi through CMC Aviation Ltd. The CAA report took about two weeks, explaining a later formal request lodged on 14 August 1997. The appellant refused to settle the claim, alleging breaches of the Insurance Policy, including excessive emergency expenses and repairs without consent, and later raised lack of insurable interest. The respondent sued and the High Court (Commercial Division) awarded various sums plus general damages of Shs.10,000,000, interest and costs.

Issues

  1. Whether the trial judge was entitled to take judicial notice of insecurity prevailing in a foreign country (Eastern DRC).
  2. Whether the second ground of appeal complied with Rule 85(1) of the Court of Appeal Rules.
  3. Whether the respondent breached the Insurance Policy by incurring excessive emergency expenses or by carrying out repairs without the insurer's consent.
  4. Whether the respondent had an insurable interest in the aircraft.
  5. Whether the appellant could raise the issue of insurable interest when it had not been pleaded.

Orders

  • Appeal dismissed.
  • Costs to the respondent in this court and in the court below.

Key headnotes

Evidence — Judicial Notice — Insecurity in a Foreign Country — Evidence Act s.56(1)(i)
A court may take judicial notice of insecurity prevailing in a foreign country under section 56(1)(i) of the Evidence Act, particularly where the relevant facts are notorious and the opposing party has not challenged the averment in pleadings or cross-examination.
Civil Procedure — Memorandum of Appeal — Grounds Must Specify Points Wrongly Decided — Court of Appeal Rules r.85(1)
A ground of appeal that merely narrates statements made by the trial judge without specifying which points were wrongly decided contravenes Rule 85(1) of the Court of Appeal Rules and is incompetent and liable to be struck off.
Insurance — Breach of Policy Condition — Distinction Between Conditions and Provisions Affecting Recoverable Amount
Where a policy clause limiting recoverable emergency expenses is not a condition, exceeding the prescribed limit does not amount to a breach entitling the insurer to reject the whole claim; it only affects the amount the insured may recover.
Insurance — Ostensible Authority — Consent to Repairs Given by Insurer's Manager
An insurer's manager who issued the policy may be endowed with ostensible authority to give consent to repairs, and consent need not be in writing where the policy condition does not require it.
Pleadings — Unpleaded Defence — Insurable Interest Raised at Submissions
A defence such as lack of insurable interest that was not pleaded cannot be raised for the first time during submissions, as it deprives the opposing party of the opportunity to prove the contested fact.

Legislation cited (2)

  • Evidence Act s.56(1)(i)
  • Court of Appeal Rules r.85(1)

Cases cited (1)

  • Sietco v Noble Builders (U) Ltd (Civil Appeal No. 31 of 1995)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.