NIGER INSURANCE CO. LTD. V. ABED BROS. LTD & ANOR.

• Pages: 390-400

390

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NIGERIAN SUPREME COURT CASES

[1976] N.S.C.C.

In no circumstance can a court find for a plaintiff other than in accordance with his

final pleadings whatever evidence may have been offered

(Mandilas & Karaberis

v. J.O. Oridola

(1972) 2 S.C. 47 at p.51).

Costs allowed the respondents in this court are assessed at N146.

Appeal dismissed.

NIGER INSURANCE CO. LTD. V. ABED BROS.

LTD & ANOR.

NIGER INSURANCE COMPANY LIMITED



APPELLANT

V

ABED BROTHERS LIMITED and ANTHONY

JOSEPH DEBOUL (Trading under the name) RESPONDENTS

and Style of MINI TRANSPORT REPAIRS

(Third Party)

SUIT NO. SC 138/1975

SUPREME COURT OF NIGERIA

ALEXANDER,



C.J.N.

FATAI-WILLIAMS, J.S.C.

BELLO,



J.S.0

2nd July, 1976

Commercial Law - Contract - Insurance Policy - Breach of implied term -

Fundamental breach - Liability - Indemnity.

ISSUES:

1.

Whether a contract which has no specified time limitation should be performed

within a reasonable time.

2.

Whether an exception clause or a limitation of liability clause is applicable where

there is a breach of a fundamental term.

3.

Whether the implied term to repair a motor vehicle within a reasonable time

goes to the root of an insurance policy.

4.

Whether it is possible under Order IV Rule 4 of the Supreme Court Rules 1948

Laws of Nigeria to allow joinder of a third party in a claim for indemnity.

FACTS:

The appellant was the insurer of the Respondent's motor vehicle under a com-

prehensive policy and during the currency of the policy the motor vehicle was

badly damaged due to an accident. In accordance with a term of the policy the

appellant elected to have the motor vehicle repaired. The repairs took 38 months

to complete. The Respondent claimed against the appellant in the High Court of

Kano State damages for loss of profit arising from the appellant's breach of an

implied term of the policy to repair within a reasonable time. The appellant's

defence in the trial court was:-

1.

That under the exception terms of the policy its liability was limited to the

cost of the repairs and it was not liable for consequential loss.

2.

That if there was any unreasonable delay in the repair of the motor vehicle,

it was caused by the Respondent's conduct. The appellant then made a

claim against the Third Party for indemnity in that if the Appellant was liable

to the Respondent then the Third Party was liable to indemnify the Appel-