agreement between the defendant and the third party which provides that: "Such Insurance or the limits of such insurance shall not be construed to limit Carrier's liability”. He argued that when asked in cross examination whether this clause did not mean that the taking out of Insurance did not limit his company's liability TPW1 initially replied 50/50 not exactly and then subsequently said he did not know. He submitted that the clause is clear and unambiguous and basically means that, whether insurance has been taken out and whether the Insurance that has been taken out has a limit, such taking or limits on such insurance could not in any way limit the Carrier's liability. This means that whether or not the value of the goods had been declared or not, whether or not Insurance had been taken out for the full replacement value of the goods, this would not in any way limit the liability of the Third Party to indemnify the Defendant for the full value of the goods. Thirdly counsel submitted that given the contention in the evidence of the third party witness that the Defendant should have advised the value of the goods to help in the adjustment of the Insurance, counsel argued that in light of the evidence adduced this was not tenable. The company had taken out Insurance once covering a whole year (in a different company's name). He did not indicate that every time he took out goods whose value was over the single transit limit, he took out fresh Insurance and again, he conceded that there was no way his customers could know the prospective values of the goods they were to request him to carry for him months in advance. However, most importantly to the extent that he admitted that he was transporting goods over the transit threshold and yet had not increased the cover, any time he did transport them, shows that his contention that had he been advised of the value of the goods before hand, he would have increased the level of cover, is not an argument that can be sustained on the facts. Learned counsel for the defendant submitted that the decided cases on the subject of Indemnity are to the effect that for one to claim indemnity, the subject matter in the suit must be the same subject in the third party proceedings according to the case of Yafesi Walusimbi -vs- Attorney General [1959] EA 223. The subject matter in the main suit is the same in the Third Party proceedings. A third party claim must be based on a Contract express or 39