Niger Insurance Co. Ltd V. Abed Brothers Limited & Anor (1976)
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The appellant is an insurance company and was the insurer of a motor vehicle, No. KN 452, acquired by the respondent in September 1967 under a hire-purchase agreement. The insurance agreement between the appellant and the respondent was in the nature of a comprehensive policy the terms of which are contained in the Standard Policy of the appellant, which was admitted at the trial as Exhibit 23.
PAGE| 2 The liability of the insurer arising from loss or damage of the insured motor vehicle is contained in clause 2 of the Policy, which reads: “2. At its own option the company may pay in cash the amount of the loss or damage or may repair re-instate or replace the motor vehicle or any part thereof or its accessories or spare parts. The liability of the company shall not exceed the value of the parts lost or damaged and the reasonable cost of fitting such parts. The insured estimate of value stated in the schedule shall be the maximum amount payable by the company in respect of any claim for loss or damage.”
The events that precipitated the dispute between the parties may be summarised thus: On 13th July, 1968, while the policy was still in force, the motor vehicle was involved in an accident near Kontagora in the course of a journey from Kano to Lagos and was badly damaged. By its letter of 15th July, 1968, the respondent informed the appellant of the accident and in accordance with the option under clause 2 of the Policy, the respondent elected to have the motor vehicle repaired. The insured motor vehicle consisted of two units, the tractor unit and the trailer unit, and both units must be coupled together for the motor vehicle to be utilised commercially. This fact is of great significance in relation to the time taken to repair the two units.
Upon the instructions of the appellants, C.F.A.O., a firm of motor engineers, removed the tractor unit from the scene of the accident to their workshop in Kano where they repaired it. The repairs of the tractor unit were completed in June 1969, which was about 11 months after the accident. The repairs of the trailer unit took a much longer time. The appellant first requested the Mini Transport Repairs, the Third Party, to repair the unit which was taken to the premises of the Third Party and remained there up to February 1970 undergoing repairs which were not completed. The appellant then caused the trailer unit to be transferred to the workshop of the Steel Construction Co. Ltd. to complete the repairs. The transfer was effected in February 1970 but the repairs were not wholly completed by the Steel Construction Co. until September 1971.
What emerged then was that the motor vehicle had not become roadworthy from date of the accident until September 1971, which was about 38 months from the date of the accident. The pith of the respondent’s case in the court below was the unreasonable delay in repairing the motor vehicle and making it roadworthy. In its action against the appellant for breach of the appellant’s obligation to repair the motor vehicle within a reasonable time, the respondent claimed in paragraph 15 of the Amended Statement of Claim against the appellant: “(a) Loss of profit at £750 per month from 15th July, 1968 to 21st September, 1971;
PAGE| 3 (b) £7,320 being the total money paid by the Plaintiffs to Bentworth under the Hire Purchase Agreement; (c) General damages.” On the application of the appellant, the learned trial Judge joined Mini-Transport Repairs in the suit as a Third Party. The claim of the appellant as stated in the Third Party Notice is as follows: “The defendant claims against you to be indemnified against the plaintiff’s claim and the cost of this action on the ground that the delay in repairing the plaintiff’s motor vehicle No. KN452 was caused by you” Pleadings were ordered and duly filed. Three witnesses gave evidence for the respondent, one witness for the appellant and five witnesses for the Third party.
A substantial part of the evidence in the case was contained in documents and in all, 60 exhibits were admitted in evidence at the trial out of which the learned trial Judge, in the course of his judgment, excluded two, to wit Exhibits 43 and 44 as being inadmissible in evidence. In a reserved judgment Wheeler SPJ, as he then was, considered the evidence with meticulous care and thoroughness.
He held that there was an implied term in the policy of an undertaking by the appellant to repair the motor vehicle within a reasonable time. He found that the appellant was in default in the discharge of that obligation and was liable for breach of the policy.
He awarded N27,600 as damages for loss of profit to the respondent and made no award on the claims in items (b) and (c). He found the Third Party not liable in respect of the indemnity claimed and dismissed the appellant’s claim against the Third Party. It is against that judgment that the appellant has now appealed. Grounds of appeal No. 3 and 6(c) were abandoned at the hearing of the appeal and they were struck out. We would consider all the grounds of appeal relating to finding of facts on the issue of liability together. They are as follows:- “1. That the decision is against the weight of the evidence; 5. The learned Judge made the following specific findings: (a) (i) the plaintiffs interferred with work of repairers by removing “an axle hub and wheel” whilst the trailer the subject matter of this action was in the premises of Steel Construction Company Limited in Kano.
PAGE| 4 (ii) The Plaintiffs removed another axle and replaced it with a bent and useless one whilst the trailer was in the premises of the Third Party and that the appellants were under no obligation to replace the same. (iii) That the defendants were not liable to pay for and carry out repairs to most of the braking system damage to which resulted from the interference of the plaintiffs. (b) Having held as above the learned trial Judge was wrong in holding in effect that the Defendants were liable to replace the parts, taken away and never returned by the plaintiffs, after a delay of four-and-a-half months which the plaintiffs’ action occasioned and not to have so replaced the spare parts constitute a breach of the agreement to repair within a reasonable time because of this the Judge should have dismissed the claim. 6. The learned trial Judge was wrong in finding: (a) That in spite of eye witness account the landing gear of the trailer was missing as a result of the accident. (b) That the damage to the electrical system and some part of the brake system occurred in the accident.” As we have earlier pointed out, the repairs to the trailer unit took about 38 months to complete from the date of the accident. The case for the appellant as pleaded in paragraph 5 of their amended Statement of Defence was, inter alia, that the delay had been substantially caused by the respondent. The said paragraph 5 reads: “5 The said Mini Transport failed to repair the trailer unit because the running gear and the hub thereof had been dismantled upon the instruction of the plaintiffs.” Having considered all the evidence of the witnesses of the parties relating to the defence under paragraph 5 aforementioned, the learned trial Judge concluded: “I find on the basis of their evidence that Abed Brothers were responsible for removing the front axle from the trailer while it was in the premises of Mini Transport and replacing it at a later stage with a bent one.
Thus there has been established two separate acts of interference by Abed Brothers with the trailer, both of them quite wrongful. The first in the premises of Steel Construction where they removed an axle, hub and wheels; the second in the premises of Mini Transport where they removed an axle replacing it later with a bent one. Did this conduct delay the trailer’s repair?”
PAGE| 5 He then proceeded to answer the question posed by him. After an extensive review of the evidence, he found that the trailer was made immobile thus making it impossible to effect repairs when it was in the workshop of the Mini Transport by reason of the removal of the parts in question by the respondent and that the conduct of the respondent contributed to the delay in effecting repairs of the trailer; that the removal of the parts by the respondent delayed the work of repair to the trailer by one month; that the effective cause of the delay in moving the trailer from Mini Transport to the Steel Construction to enable the latter to continue the work of repair was the removal of the parts by the respondent; that the removal of the parts by the respondent also delayed the repairs from 23rd December, 1969, when Mini Transport stopped work on it, to the end of the first week in February 1970, when Steel Construction were in a position to commence work on it, that is for a period of six weeks; that it took Steel Construction some thirteen weeks to complete the additional repairs to make the trailer roadworthy after they had completed the accident repairs and that eight weeks out of the thirteen weeks was a fair estimate of the period they spent.
From the foregoing findings the learned Judge then summarised his apportionment of responsibility for the delay in repairing the trailer unit in the these words: “The final picture has now emerged and the effect of the facts which I have found means that its main features may be summarised as follows: The vehicle insured consisted of two sections, the tractor section and the trailer section. The tractor section was repaired by the 9th June, 1969, and this was reasonable. The trailer section should have taken substantially less time to repair and therefore the whole vehicle should have been ready by the 9th June, 1969.
It was not fully repaired until the 25th September, 1971, that is two years and three and a half months later. While the trailer was undergoing repairs by Mini Transport or awaiting removal to Steel Construction to enable them to continue with the work of repair, Abed Brothers’ interference with the trailer delayed the work by a total period of two and a half months. In addit
Other Citation: (1976) LCN/2280(SC)