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However after the Suisse Atlantique case; the House of Lords declared that whether a fundamental breach extinguishes any protection of a limitation clause was a question of construction and not a question of law; this rule became established in the House of Lords in subsequent cases such as the Photo Production’s case where the decision of Lord Denning following his judgment which upheld the initial rule for fundamental breach in Harbutt plasticine Ltd v Wayne Tank & Pump Co. was set aside for the rule in Suisse Atlantique. In Narumal & Sons Nigeria Ltd v Niger Benue Transport Company Ltd; Nnamani J.S.C. observed the following that fundamental breach in English earlier cases; “would have led to an exclusion or exception clause, the latter cases appear to hold that such an intention must be deduced from the construction of the terms and circumstances of the contract between the parties.” However, the application of the two rules is not settled in Nigeria as courts still use the Fundamental breach rule in recent cases such as Mekwunye v Emirate Airlines The act of Olamide deviating from the agreed route is obviously a fundamental breach and the consequential loss of the goods definitely allows Damian the right to repudiate the contract and be rewarded damages notwithstanding the existence of the exclusion clause that ousts this liability if we were to go by the decisions in the Thorley and Niger insurance cases mentioned earlier. Moreover, Olamide‟s justification for deviation is not good enough as it is not a measure to save either lives or property. However, the rule of construction in the latter cases such as the Photo productions however opens the exclusion clause to interpretation to determine the intentions of the parties to a contract in the event of a fundamental breach. Thus, the clause inserted into the contract between Damian and Olamide i.e. “no liability is accepted for any damages howsoever caused to the goods during the course of transit” is to be construed to decide whether or not the exclusion clause covers his liability. In Narumal & Son’s case, Nnamani JSC had construed the statement “accepts no responsibility or liability for any damage or loss however caused to the goods” particularly the phrase “however caused” to be so „wide that they are intended to grant exemption‟ from Liabilities in the case of loss or damages to goods to scenarios such as Olamide‟s. both wordings, „however‟ and „howsoever‟ possess the same meaning. They have been defined as
1. In whatever manner
2. In whatever degree or way” thus, „however‟ and “howsoever” bears the same meaning.
Considering the following, the rule of construction would therefore allow the exclusion clause to avail Olamide from Liability for the damaged furnitures.
(b) Next is to determine the effect of the exclusion clause that “no liability is acceptable for losses due to the Carrier‟s negligence.” The general rule for negligence is that, where a Party‟s contractual liability could arise from negligence and any other cause of action, the exclusion clause will not be construed to cover it unless the exemption clause specifically refers to negligence. Thus in White v Warrick, the defendant reliance on an exclusion clause that ousts liability for personal injuries caused to the riders by the bicycle hired was dismissed on the grounds that they did not specifically refer to injuries caused due to negligence on their part to repair the defective saddle.
It therefore follows that the rule of construction and the general rule for negligence exhibit alike features. Thus, since the contract between Olamide and Damian specifically includes the word „negligence ‟as required by the general rule in the case of Negligence, Olamide would not be liable for any damages caused to the furniture by negligence during the course of transit. The issue however is whether or not Olamide committed an act of negligence on which the resolution above could be rational in this case scenario. Evidently, nothing in this case scenario seems to imply that Olamide was negligent during the course of transit. He was noted to be deviant; the consequences of which had been discussed. Thus, since there is nothing in this current clause to exclude liability for deviation but rather for negligence, Olamide remains liable for fundamental breach of an express term. Since the construction of this clause is limited to negligence, the rule of interpretation would definitely work in favour of Damian. In the same vein, where the initial rule that a breach of fundamental term automatically results in an exclusion of an exemption clause was applied in this scenario, Olamide still remains liable to pay for damages caused to Damian‟s furniture.
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