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In The Supreme Court of
On Friday, the 15th
day of June 2007
Before Their Lordships
S.C.
43/2002
Between
And
Judgement of
the Court
Delivered by
Sylvester Umaru Onu,
J.S.C.
The facts of this case are not
complicated nor are they disputed. The three Plaintiffs/Appellants companies
(which were owned and managed by the same persons) ordered from
On the 12th April,
1993 the vessel arrived
The off loading from the vessel
on 10th May, 1993 was witnessed by the Nigerian Ports Authority
(NPA for short)
officials and by representatives of the 3rd Defendants,
Alraine (Nigeria) Limited
(who at all material times the agents of the 2nd
Defendant ship owners in Nigeria) as well as by the Plaintiffs clearing
agent.
The Nigerian Ports Authority
tally clerk, it is stressed, tallied the containers being off loaded and
issued Landing Tally Sheets, whilst the Alraine representative issued
Container Intercharge Receipt/Damage Reports. The Appellants' chairman and
managing director PW3 (Hilary Obi) testified that he received
information from his clearing agent that three out of five containers
consigned to his company had been discharged on 10th May, 1993
aforesaid with their seals intact whilst the seals on the remaining two
containers had been tampered with.
He then asserted that based on
the information that the two containers bore "wire seals", he called for a
joint examination of the two containers. This examination was conducted on
the 3rd June, 1993 in the presence of customs & excise officials,
representatives of the Defendants, the Police, representatives of N.P.A and
two surveyors appointed by himself and by the 3rd Defendants. At
the inspection, the two containers were opened for the first time and found
to be completely empty. Following this discovery, the Plaintiff’s Solicitors
wrote to the 3rd Defendant lodging a formal claim for the loss of
the contents of the two said containers, namely 1011 boxes of the aforesaid
electric water heaters and irons. In their reply, Alraine did not challenge
the allegation, but said they would refer the claim to their principal, the
2nd Defendant.
Emanating from the above facts,
the present action arose herewith was commenced by the Plaintiff/Appellants
claiming that the two relevant containers had been tampered with prior to
off-loading from the 2nd Defendant's vessel and that the ship
owners as well as their agents (Alraine) were liable to the
Plaintiff/Appellants for the loss of the contents of the two containers. The
evidence relied upon (which will be expatiated or elaborated upon at length
in due course) was that the seals on the two containers bearing the
inscriptions "Frezekova s.t.c"
and Elektrozaved s.t.c" had been removed and replaced with
twisted wire at some stage during the voyage from Tallin. The Appellant's
case was that this cast the onus on the Defendants to
explain the
circumstances of the loss.
Auta, J. of the trial court,
the Federal High Court, dismissed the Plaintiff/Appellant's case. On appeal
to the Court of Appeal, the appeal was on the 2nd December, 1999
dismissed. It is against the said judgment of the Court of Appeal that this
appeal, has been brought to this court.
In dismissing the Appellant's
case, the Court of Appeal (hereinafter referred to as the court below) held
concurring with the findings made by Auta, J. as follows:
1.
That the Plaintiffs had not given "strong proof” that the relevant
containers had been interfered with.
2.
That the containers had been discharged, with seals, albeit "wire
seals."
3.
That there was no evidence of physical damage to the containers. .
:
4.
That the inscriptions "Frezekova" and "Elektrozaved" specified in the
bills of lading as being on the relevant seals on the container had
disappeared due to "oxidation."
5.
That according to DW4 he knew that when the container was
off-loaded from the vessel, it was full because "of the sound it made."
6.
That the Plaintiff did not state how he knew that the containers had
been tampered with.
Against the above findings, the
Appellants filed five grounds of appeal out of which two issues were
formulated as arising for determination; to wit:
1.
Whether there was evidence that the relevant containers were
off-loaded from the vessel with their original seals.
2.
What inferences a court is entitled to draw when the seal specified
in a bill of lading is not seen on a container at the time of its off-losing
from a carrying level.
The Respondents on the other
hand, respectfully submitted that the following two issues for determination
arise from the Appellants' grounds of appeal, namely:
1.
From the facts and evidence before the Federal High Court and the
Court of Appeal, did the Respondents discharge the Appellants' containers
into the custody of the Nigerian Ports PLC with their contents and original
seals intact? This is a question of fact.
2.
Did the Respondents discharge their duty under the contract of
carriage and bailment evidenced by the relevant Bills of Lading?
Having taken a careful look at
the two sets of issues, I have come to the irresistible conclusion that the
consideration of Respondent's' two issues will suffice to dispose of the
issues.
Arguments
on Issue 1
It is the Respondents'
respectful submission that a careful study of the evidence tendered during
the trial of the case would lead to the ultimate conclusion that the two
relevant containers numbers mmmu3606825 and mmmuI357739 were discharged by
the Respondents into the custody of the Nigerian Ports PLC with their
contents and seals intact.
The evidence may be stated
thus:
a)
The evidence of PW4, Mr. Otitobi Olasukemi at page 31 of the Records:
"It containers (sic) came with
wire seals. I did not open the container but from the sound I know that it
was full. The containers as per my Report were not tampered with. If there
is any damage on the container the Captain will not sign it. But this one
the report was signed by the Captain.
b)
The evidence of DWl, Mr. Dennis Aribuzo, a Tally Clerk with the
Ministry of Labour, with 25 years experience at pages 35 of the Record in
examination in chief, states as follows:
“When a ship is discharging a
container both Nigerian Ports Authority and other insurance companies will
be present. Where the container is landed from the Horn to the N.P.A
compared (sic) (meaning compound) we will take the prefixs and the number of
the container, both the Tally Clerks will go round the container to see
whether it has seals. If it has a seal we will take the number of the
container, if it has no seal we will make a remark to that effect. I was
present when the container arrived in the ship. The ship contains other
containers. The containers arrived with a seal. It was a wire seal. All the
containers I tallied came with wire seals. If the container arrived with a
seal we will draw the attention of the supervisors of the ship to it. The
supervisor will call the Captain of the ship with the N.P.A and insurance
clerks and both the Tally Clerks will go round the container to see whether
it has seals. The Supervisor will call the Captain of the ship with the
Nigerian Ports Authority and Nigerian Ports Authority will order that the
container be taken back to the ship for checking. The seals were not
tampered with when there is no:seal on
the container we will indicate so on the tally sheet under Remark column.
There is no remark made on exhibit "J". If there was (sic) no numbers on the
seal I countersigned the Tally with the N.P.A and we exchanged signature is
on exh "C", I was present when exh! “C”, was prepared. There is a seal
affixed on the twisted wire. We normally know whether a container is full
from the sound it makes when it landed.”
Be it noted that the Appellants
as Plaintiffs did not call or lead any evidence that contradicted or
controverted the evidence of DW1, neither were they able to discredit the
witness and his testimony during cross-examination.
c)
The evidence of DW2, Mr. Jerome Nkonranta, tally clerk with the
"........ They were all in
order, they have seals on them. There is no problem on them. There was no
remark made on exhibit 'K'. We only make remarks when the container has no
seal container is broken. If it is broken the
Nigerian Ports Authority and the ship supervisor will also be called upon
and the chief of the ship will inspect it and make
remarks ......... I cannot remember the type of seals that came with
the containers but I know they have seals ......”
From the above evidence given
by the Tally Clerks who witnessed the discharge of the containers from the
Respondent's vessel into the custody of the Nigerian Ports Authority
establishes beyond reasonable doubt that the 5 containers belonging to the
Appellants inclusive of containers Number mmmu3606825 and mmmu1357739 were
discharged into the custody of the Nigerian Port Authority with their
contents intact.
By virtue of clause 10 of the
relevant, Bills of Lading (exhibit E. pages 77-82 of the Record) the onus
was on the Appellants to prove that the loss of the contents of the above
containers occurred prior to
when both
containers crossed
the second Respondent's
ship's rail
into the
custody of the Nigerian
Ports Authority.
The Appellants in attempting to
discharge the onus called 5 witnesses.
The Learned Justices of the Court of Appeal analysed the effect of
the evidence of these witnesses in their judgment at page 167 -169 of the
Record as follows:
"The evidence of PW1-3 was
unhelpful to the Plaintiffs' case as none of them had been present when the
containers were discharged from the ship.
The evidence of PW4 was
destructive of Plaintiffs' case ...... The
Plantiff himself testified as, PW5 .......... If
the Plaintiff himself was not in the vessel how could he
say categorically that the
containers were tampered with on 10/5/93. Remarkably, he did not say who
tampered with the containers on 10/5/93”
At page 168 of the Record of
Appeal the court below had this to say:
"On the evidence available, it
is difficult to see how the lower court could have given judgment in favour
of the Plaintiffs ......."
It is for this reason amongst
others that I agree that the Appellants did not discharge the burden of
proof to establish that the containers were tampered with and the goods were
lost whilst in the
custody of the Respondents. Thus, no onus shifted to the Respondents as
contained on page 110 of the Appellants' Brief of Argument to contend that
the containers did not arrive in
It was rather submitted that in
view of the evidence earlier elicited, the relevant containers were
discharged with their contents intact. The Appellants' arguments that the
wordings on the seals i.e "Elektrozaved" and Frezekova"' were not present is
immaterial and irrelevant as the three (3) other containers belonged to the
Appellants which had their contents full (see PW5's testimony) did not
record those same words on their Tally notes (exhibits C & L).
I agree with the Respondents
submission that all the 5 containers containing the Appellants' goods
arrived in
I had five containers on the
vessel the other three were found with the original seals and the goods
inside were intact ………”
The three (3) containers
referred to above are container numbers:
(i)
Mmmul32598-4 discharged on the 7th May 1993.
(ii)
Mmmul426193 discharged on the 7th May 1993 and
(iii)
Mmmu08300 discharged on the 10th May 1993.
A perusal exhibit
‘C' at page 72 of the Record i.e Nigerian Ports Authority Tally sheet
shows clearly that the seal numbers registered against containers No
Mmmul325984 and 1426193 were "wire". What emerges from the perusal of the
above extract of exhibit C at page 72 of the Record shows clearly that the
seal numbers registered against container number mmmu0038300 was "twisted
wire seal”.
Furthermore, a perusal of
exhibit “L” at page 97 of the Record also shows clearly that the seal
numbers registered against containers numbers mmmul325984 and 1426193 were
"wire''. Be it noted that the Chairman and Managing Director of the
Appellants' company conceded and indeed admitted that the original seals
that came with the 3 containers were twisted wire arid wire seals.
It is important to note that it
was this same twisted wire seals which the Appellants stated as being the
original seals that were registered against containers numbers mmu3606825
and mmmul357739 at the time of discharge from the ship to the custody of the
Nigerian Ports Authority. (Please see p. 72 of the Record).
Thus, the argument of the
Appellant that the seals on container No
3606825 and 1357739 were not their original seals from
the
"Stamped piece of lead holding
ends of wire used as fastening"
Exhibit 'N’ (at page 108 of the
Record) clearly establishes that all containers destined to
"I was present when exhibit C
was prepared. There is a Seal Affixed on the twisted Wire."
According to the Master of M.V.
“Kadrina” in Exhibit "N" (vide Page 108 of the Record) those
seals oxidated due to long period of carriage in damp/humid conditions. It
is submitted that upon the tendering and acceptance of exhibit “N” evidence
at the trial of the suit, the onus shifted to the Appellants to lead
evidence to show that the wordings on seals of that nature do not oxidize.
Furthermore, the onus was also on the Appellants who had three (3) of the
“twisted wires” or “wire seals”, having taken possession of the three (3)
containers which had their contents and seals intact, to tender those seals
in evidence to show that they were ordinary wires and not lead seals welded
on both sides to twisted wire for the purpose of fastening them around the
locks on the container doors.
The Appellants failed to
discharge this onus. In further support of the fact that the Respondents
discharged the Appellants containers numbers (particularly containers
numbers mmmu3606825 and mmmu1357739) into the custody of the Nigeria Ports
Authority with their contents and seals intact. In stating this, the under
listed highlights need be made.
a.
It is not in issue that the words “Frezekova” and “Elekrozaved” were
not legible on the seals affixed to the Appellants’ 3 containers that had
their contents intact. If those words had been legible on those seals, then
the presumption would have arisen, that the illegibility of those words on
the seals in respect of container numbers mmmu3606825 and mmmu1357739 meant
that their original seal may have been removed leading to the theft of their
contents. Consequently since the above words were not legible on the seal in
respect of 8 Appellants containers which had their contents intact this
presumption does not arise.
b.
As clearly transpired, container nos. mmmu3606825 and mmmu1357739
were discharged into the custody of the Nigerian Ports Authority on the
10/5/93 (see exhibit ‘C’ at page 72 of the Record). When these containers
were discharged, no seal numbers were registered against them. Only twisted
wire seal was written. The Containers were in the custody of the Nigerian
Ports Authority for 24days before the 3rd of June, 1993 when a
joint survey was conducted for the purpose of custom examination. It was at
this stage that seal number 1946588 was found on container number
mmmu3606825 while seal number 1946551 was found on container number
mmmu1357739 were the above seal numbers inscribed on the seals affixed to
both containers prior to their discharge from the Respondents vessel, the
M.V. “Kadrina”, the tally clerks who prepared exhibits ‘C’ and ‘J’ (Pages 72
and 95 of the Record) would have registered those numbers in the column of
their Tally sheets marked “SEAL NOS” and ‘Marks’ and Numbers respectively at
the time of discharge of the container. This view is supported by the
evidence of DW1 at page 35 of the Record where he testified as follows:
“There was no numbers on the
seal.”
It is thus clear that those
seals were affixed to both containers after discharge from the 2nd
Respondents’ vessel and while those containers were in the custody of the
Nigerian Ports Authority. It raises the presumption that the theft of the
contents of both containers occurred while they were in the custody of the
Nigerian Ports Authority and the persons liable affixed the new seals to the
containers to create the semblance of normality. See with emphasis the
following extracts from the evidence pf PW1 at page 29 and PW2 at page 29-30
of the Record thus:
1.
“The cargo was stored in an open space. Anybody can have access to
them. The containers have steel seals
2.
“The two containers were presented to us at the stacking area through
Tin Can. It was open storage facility people were freely passing that area.
It is accessible”.
Furthermore, the seals that
were found on both containers 24days after their discharge from the 2nd
Respondent’s vessel were steel seals and not lead seals as stated by the
Captain of M.V. “Kadrina” in exh. “N”.
From the forgoing, it is clear
that the two relevant containers were stored by the Nigerian Ports Authority
in an open storage facility area where people ha access to them. From the
evidence of DW1 and DW2, the Nigerian Ports Authority would not have
accepted the relevant containers into their custody if the seals were broken
and their contents empty. Be it noted also that there was no evidence before
the lower courts as well as in this court to show that the “twisted wire” or
“wire seals” were broken. They were all intact when the Appellants’ five
containers were discharged into the custody of the Nigerian Ports Authority.
It is also note worthy that the
Nigerian Ports Authority did not issue a T.Form 33 – Notice of cargo landed
discrepant/damaged in respect of the two containers. Thus the letter written
by the Nigerian Ports Authority on the 10th August, 1993 (exhibit
“H” page 94 of the record) to Messrs Patrick Okoh & Co. (the plaintiff’s
Solicitors) was written three (3) months after the Respondents discharged
the Appellants’ containers in N.P.A custody. It is important to note that
the containers had been in the Nigerian Ports Authority’s custody for 24
days prior to the 3rd of June 1993 when the contents of the
relevant containers were found missing. Furthermore, the content of the
letter (exhibit H) i.e. “That the containers in question landed without
seal” is not correct.
In the case of
Agbeje v. Ajibola (2002) 2 NWLR
(PT 750) 127 at pages 132, 134 and 135 Ratios 5 and 10, this court held as
follows:
Ratio 5:
“In considering an appeal
before it what an appellate court ought to decide is whether the decision of
the trial court was right and not whether its reasons were and a
misdirection not occasioning injustice is immaterial.”
Ratio 10:
“A trial court having had the
opportunity of hearing witnesses at the trial and watching their demeanour
in the witness box is entitled to select witnesses to believe on facts
established. An appellate court should not ordinarily interfere with such
findings of fact except in certain circumstances, such circumstances
include:
(a)
Where the trial court has not made a proper use of the opportunity of
seeing and hearing the witnesses at the trial; or
(b)
Where the trial court has drawn wrong conclusions from accessed
credible evidence; or
(c)
Where the trial court has taken an erroneous view of the evidence
adduced before it; or
(d)
Where the trial courts findings are perverse in the sense that they
are unsupported by evidence or do not flow from evidence accepted by it.
The Respondents further
submitted that in this case, none of the above circumstances manifested
itself in any of the findings of the Federal High Court and
so, it is Respondents’ submission that this issue
be resolved in their favour. I so order.
Arguments on Issue 2
The Respondents’ contention
under issue 2 is that the contract for the carriage of the Appellants goods
and the Terms of Bailment existing there under were evidence by the relevant
Bill of Lading (exhibit E at page 77 – 82 of the record). For this
proposition of the law, the Respondents relied on the case of
Elder Dempster &Co. Ltd.
v. Patterson Zochonis & Co. Ltd (1924)
18 (L.I.L) Rep.320; (1924) A.C 522 at 333
“…. in the circumstances of
this case, the obligations to be informed from the reception of the cargo
for carriage to the United Kingdom amount to a Bailment upon terms, which
include the exemptions and limitations of liability stipulated in the known
and contemplated form of Bill of lading.”
Also in the case of
K. H. Enterprise (1994) 1 Lloyd’s
Rep. Page 593 particularly at page 594 ratio 4, the Privy Council
followed the decision of the House of Lords in the above case where it held
thus:
“This was a case where the
goods were shipped under Bills of Lading which documents operated as
receipts for the goods and which contained or evidenced the terms of the
contract of carriage such terms included provision relating to the ship
owners obligation in respect of the goods while in their care, and so
regulated their responsibility for the goods as balliees …”
The above position of laws was
also conceded by the Appellants at page 11 of their Brief. The terms of the
contract are contained in the conditions printed on the back of the relevant
Bills of Lading Clause 10 of the conditions provides as follows:
Extent of Responsibility:
“In no event shall the carrier
be liable for damage to and/or loss of goods prior to loading or after
discharge, not even if such damage or loss is due to the negligence of his
servant and even though the
goods are in the custody of the carrier, his agents or servant as warehouse
men or howsoever. in no event
shall the carrier’s liability commence before the goods have been loaded
over the ship’s rail and shall cease at the latest when the goods have
passed the ship’s rail upon discharge. The merchant shall be required to
prove that the goods were damaged within this period of responsibility.”
The Respondents having in Issue
1 above adduced evidence that they successfully delivered the containers
carrying the Appellants’ goods into the custody of the Nigerian Ports
Authority with the contents and seals of the containers
intact, they had discharged their duty to the Appellants by direct
evidence and not by circumstantial evidence. The Bailee of the goods, in
whose custody of the goods were at time of loss
of the containers was the Nigerian Ports Authority (the statutory warehouse
body) who was not sued by the Appellants in this suit.
On the legal relevance of seals
adumbrated in this appeal when they relied on the case of
Hagemeyer Nigeria Ltd v. Container
Terminal Co. Ltd and Alraine Nig Ltd (1985) vol.2 NSCC 367, the
Appellants’ contention that the present case is on all fours with the one in
hand is a misconception of the facts from the present one as follows:
1.
Hagemeyer Nigeria Limited case was a contract of bailment which was a
contract of carriage of goods by sea evidenced by a Bill of Laden.
2.
The issue in Hagemeyer Nigeria Limited concerned the removal of seals
from containers as opposed to the present case where the seals were intact
vide the uncontroverted oral and documentary
evidence adduced.
3.
The issue in the present case concerned the absence of the letterings
on the seals, not the removal of the seals. The Appellants also cited and
rallied on the case of Mofas shipping
Line (Nig) Ltd v. National Maritime Authority (2000) 9 NWLR (PT.672)
page 391 and argued that there was joint and several liability between the
Defendants.
Rather, I accept the
Respondents’ submission that the Appellants woefully failed to discharge the
burden of proof that it was the Respondents who caused the loss of their
(Appellants’) cargo whilst in the Respondents custody.
Even if the 3rd
Respondents’ Principal were liable, the use of the word “may”
in section 16(3) of Admiralty Jurisdiction Act, 1991 suggests that a
principal’s liability does not automatically attach to an agent. Rather, I
agree with the Respondents that the Appellant had to lead evidence to show
reason why the agent should be held liable irrespective of the liability of
its principals. In the case in hand the Appellants did not lead any such
evidence. For this reason I agree with the Respondents that the 3rd
Respondent is not liable either jointly or severally to the Appellants.
The appeal having been resolved
against the Appellants on the two issues argued against the Respondents this
appeal fails.
Accordingly, I dismiss this
appeal and award
Judgment delivered
by
Dahiru Musdapheu, J.S.C.
I have read before now the
judgment my Lord Onu, JSC just delivered with which 1 entirely agree.
By the provisions of
the Bill of Lading in the instant case, the liability of the carrier for
loss or damage to the goods shall cease immediately the containers are
discharged from the ship. It is common ground that all the containers were
offloaded from the ship and were entrusted in the usual manner to the
Nigerian Ports Authority. The respondents had thus discharged their
obligations under the contract of carriage. It is the bailee of the goods in
whose custody of the goods were at the time of
the loss or damage, that is liable. In any event, it is the duty of the
appellants to establish that the loss or damage to their goods was caused by
the negligence of the respondents. This they woefully failed to do. I
accordingly resolve all the issues posed against the appellants and I
dismiss the appeal I award
Judgment delivered by
Sunday Akinola
Akintan. J.S.C
The dispute that led to the
filing of this case at the Federal High Court, Lagos by the present
appellants, as plaintiffs, against the present respondents, as defendants,
was over the loss of the contents of the appellants' goods in two of the
five containers shipped to them through the Tin-can Island port, Lagos, The
five containers were shipped from the Russian port of Tallin.
According to the pleadings and the undisputed evidence led at the trial, the
ship carrying the 5 Containers arrived the
The learned trial Judge found
that the plaintiffs failed to prove that the stealing of the contents of the
two containers took place while the containers were still in the custody of
the defendants and therefore dismissed the claim. An appeal to the court
below against that verdict was also dismissed. The present appeal is from
the judgment of the court below dismissing the appeal.
There is no doubt that there
was sufficient credible evidence on record in support of the conclusions
reached by both the trial High Court and the Court of Appeal. The case
therefore is one in which there has been concurrent findings of fact by the
two lower courts. The position of the law is that this court will not
disturb such concurrent findings of fact made by the two courts below unless
it is shown that either they were perverse or that there was a substantial
error either in the substantive or procedural law which if not corrected,
will lead to a miscarriage of justice: See Akimunya v. U.B.A Ltd. (1986)
4 NWLR (Pt. 35) 273;
Animashaun v. Olojo
(1990) 6 NWLR
(Pt.
1$\4)111; Odonigi v. Oyeleke (2001) 6 NWLR 6 (Pt. 708)
12; and Nmadogo v.
The State (2001) 3 NWLR (Pt.699) 192. The
appellants have failed to show that any "of the conditions warranting the
interference with the concurrent findings of fact made by the two courts
below existed in the instant case.
In the result, I had the
privilege of reading the lead judgment prepared
by my learned brother, Onu,
JSC. The facts of the case are well set out therein and all the issues
raised in the appeal are fully discussed.
I entirely agree with his conclusion that the appeal lacks any merit.
For the reasons I have given above, and the fuller reasons given in the lead
judgment which I also adopt, I dismiss the appeal with costs as assessed in
the lead judgment.
Judgment delivered by
Mahmud Mohammed, J.S.C
This appeal is against the
decision of the Court of Appeal Lagos Division delivered on 2nd
December, 1999, upholding the judgment of Auta J. of the Federal High Court
Lagos given on 27th
July, 1994, dismissing the suit filed by the Plaintiffs/Appellants in
that Court against the Defendants/Respondents. The claims of the Plaintiffs
Appellants in their action was that as owners of 858 boxes of Electric Water
heaters and Electric Flat Irons carried in two containers on board the
Defendants/Respondents ship and as consignees under a Bill of lading claimed
damages for loss of, or non delivery of the 858 boxes carried by sea from
Talim in Russia to Lagos Nigeria. The total damages claimed with interest
came to US$108,050.87.
The trial Court after giving
the parties full hearing, came to the conclusion that the Plaintiffs/
Appellants have failed to prove their case on the evidence adduced by them
and dismissed the action after making the following findings on the evidence
at page 13 of the record.
"In conclusion, all these
witnesses testified to the effect that the two containers and indeed all the
containers arrived with wire seals and they did not notice anything wrong
with them, and as far as they are concerned the goods were intact.
All the witnesses especially the Tally Clerks also testified to the
fact that, if to say, that there is something irregular with the containers
they would have stated so under the remark column on the Tally Sheets and
most importantly, the N.P.A. would not have accepted the goods into their
custody. From the testimony of these witnesses and documentary evidence
brought before the Court, there is strong evidence, that the 2 containers in
dispute arrived sound and intact and that the loss of the content of the two
containers could not occur while in their custody."
In affirming the decision of
the trial Court in dismissing the Plaintiffs/Appellants' appeal, the Court
below after closely analysing the evidence on record and applying the
applicable law on evaluation of evidence in its leading judgment at page
171, came to the following conclusion -
"I have no reason whatsoever to
interfere with or disturb the solemn findings of fact made by the lower
Court; and as those findings lead irresistibly to the final conclusion in
the judgment, I must uphold the judgment."
In the present appeal now under
consideration by me, I find no reason whatsoever to disagree with the
concurrent findings of fact by the two lower Courts with which I entirely
agree.
In the result, having read in
draft the leading judgment of my learned brother Onu, JSC, in this appeal, I
completely agree with him that there is no merit in this appeal which must
suffer the fate of being dismissed. Accordingly I also dismiss the appeal
with
Judgment delivered
by
Ikechi
Francis Ogbuagu.
J.S.C.
This is an appeal against the
decision of the Court of Appeal, Lagos Division and (hereinafter called "the
court below") delivered on 2"d December, 1999 dismissing the
appeal by the Appellants and affirming the Judgment of the trial Federal
High Court, Lagos delivered on 27lh, July, 1994 -per Auta, J,
dismissing the Appellants' suit. There are six grounds of appeal. The facts
in this case which appear to be undisputed, are
substantially contained in the lead Judgment of my learned brother, Onu, JSC,
just delivered. Brief of Arguments have been filed and exchanged including
the Reply Brief of the Appellants.
The Appellants, have formulated
two (2) issues for determination, namely,
"1.
Whether there was evidence
that the relevant containers were off-loaded from the vessel with their
original seals.
2.
What inferences
a Court is entitled to draw when the seal specified in a Bill of Lading is
not seen on a container at the time of its off-loading from a carrying
vessel".
On their part, the Respondents,
formulated also two (2) issues for determination, namely,
"1.
From the facts and evidence
before the Federal High Court and the Court of Appeal, did the Respondents
discharge the Appellants containers into the custody of the Nigerian Ports
PLC with their contents and original seals intact? This is a question of
fact.
2.
Did the Respondents discharge their duty under the contract or
carriage and bailment evidenced by the relevant Bills of Lading? "
In dealing with the issues of
the parties, particularly Issue 1 respectively of the parties, I will
reproduce herein, the terms of the contract contained in the conditions
printed at the back of the relevant Bills of Lading. Clause 10 (1) of the
conditions, reads as follows:
"Extent of Responsibi1ity
In
no event shall the Carrier be liable
for damages to and for loss of goods prior to loading or after
discharge, not even if such damage or loss is due to the negligence of his
servants and even though the goods are in the custody of the Carrier, his
agents or servants as warehousemen or howsoever. In no event shall the
Carrier’s liability commence before the goods have been loaded over the
ship's rails and shall cease at the latest when the goods have passed the
ship's rail upon discharge. The Merchant shall be required to prove that
the goods were damaged within this period of responsibility".
[the
underlining mine]
The above conditions are clear
and unambiguous that they need no interpretation. It need be stressed and
this is also settled, that if parties, enter into an agreement, they are
bound by its terms. See the cases of Evbuomwan &3 ors. v. Elema & 2 ors.(l994)
7-8 SCNJ. (Pt.II) 243
and Koiki & 2 ors. v.Magnusson (1999) 5
SCNJ. 296 @ 320
citing several other cases therein. In other words, where
parties enter or agree in a solemn contract, they are expected to honour its
terms. Bearing this principle in mind therefore, in the instant case, while
the Plaintiffs/Appellants assert, that the goods were removed, lost or
stolen, when they were in transit, the Defendants/Respondents, state, that
they discharged their obligation, when the goods were off-loaded from the
ship. This being the case or position, the Appellants, were bound to prove
their said assertion as it is now firmly settled, that he who asserts, must
prove. See Section 135(i) and 137(i) of the Evidence Act and the cases of
Are
v. Adisa
(1967) NMLR 304:
Nigerian
Maritime
Services Ltd. v.
Alhaji Afolabi (1978) 2 S.C. 79;
Kate Enterprises Ltd, v.
Daewoo Nig. Ltd. (1985) 3NWLR
(Pt.5) 116:
Udih v.
Idemudia (1998) 3 S.C. 50;
(1998) 3 SCNJ.
36
and recently,
Chief Archibong & 6
ors.
v. Chief
Ita & 4 ors. (2004) 1 SCNJ. 141 @ l60
- per Tobi,
JSC and International Messengers (Nig.)Ltd. v. Pegofor
Industries Ltd.
(2005) 5 SCNJ. 120 @135
- per Onu, JSC and many others.
Clause 10 of the Bill of Lading,
makes it abundantly clear, that
the Respondents', will never be held liable, the moment, the containers are
discharged after the goods had passed the ship's rails or railings. Period!
I note that at page 22 of the
Records, the Respondents in paragraphs 6 and 7 of their Amended Statement of
Defence, pleaded as follows:
"6.
The defendants avers (sic)
with reference to paragraphs 8, 11 and 12 of the Plaintifs' Statement of
Claim that all the 11
containers described in paragraph
4_and 5 above (sic) were discharged
without any report of
broken or_damaged seals and all the
11 containers were described as having been discharged,full
sound and intact
with "wire seals". The defendants shall rely on the following documents
at the trial.
(A)
Nigerian Ports PLC Landing
Tally Sheets, Nos. 00590 and 00592 dated 7th of May, 1993 and 10lh
of May, 1993 respectively.
(B)
Alraine
's Landing Tally
Sheets Nos. 61228 and 61229
dated 7th of May, 1993 and 10th of May, 1993 respectively.
(C)
Alraine Interchange
Receipt/Damage, Report Nos. 029040 - 47B and Nos. 029048-50B dated the 7th
of May, 1993 and 10th of May, 1993 respectively"
[the
underlining mine].
"7.
The defendants avers (sic)
with further reference to paragraph 5 above that
the Plaintiffs took delivery
of 5 out of the 11 containers bearing the description “wire seals” from the
custody of Nigeria Ports Authority PLC
after its discharge by the
Defendants''
[the
underlining mine]
1 note that at page 26 of the
Records, the Appellants in their REPLY, joined
issues with the
Respondents, only in
respect of the averments
in paragraph 6 of the Respondents said Amended Statement of Defence
and not in respect of paragraph 7 thereof. The effect, and as settled in a
number of decided authorities, is that unchallenged or uncontroverted fact
or facts, need no further proof more so, if the said fact or facts pleaded,
are given in evidence. See
Phoenix Motors Ltd, y. Mr. Ojewunmi
& 2
ors.
(1992) 6
NWLR (Pt.248)
501@
508C.A.;
Uredi v. Dada (1988) 1 NWLR (Pt.69) 237@-246, (1988)_2
SCNJ. 128;
Egbunike
v.
ACB Ltd. (1995) 2
NWLR (Pt.376) 34 @53;
(1995)2
SCNJ. 58;
I also note that the Appellants
called five (5) witnesses and tendered documents. The trial court, found as
a fact at page 12 of the Records; that PW1 and PW2, were not present when
the goods were off-loaded from the ship. He also found that PW4 - a Ship
Agent with the 3rd Respondent, stated that he was present when
the goods were off-loaded from the ship and that the containers, arrived
with wire seals and that by
his Report, the containers, were not tampered with. The trial court also
stated that the PW1, testified that he was present, when the ship arrived
with the containers secured by Wire
Seals and that the seals had not been tampered with, I note that
the court below at pages 167 and 168 of the Records, stated inter alia, as
follows:
"The evidence of P.Ws 1-3 was unhelpful to the Plaintiff's (sic) case
as none of them had been
present when the containers were discharged from the ship.
The evidence of the P.W. 4 was destructive of
Plaintiff’s
(sic
) case. He said under cross-examination, "I carried out the report. I
was present when the two containers were discharged ....
vessel. There were other people present when I
prepared the report. Other Tally clerks were also present. Its containers
came with wire seals. I did not open the containers but from the sound I
know it (sic) was full.
The containers as per my report
were not tampered with. If there is any damage
on the containers the Captain will not sign it".
[the
underlining mine]
The learned trial Judge at Page
10/13 of the Records, stated inter alia, as follows:
"The 2nd defendant witness also testified accordingly with regard to the
Seals. In conclusion, all these
witnesses testified to the fact that the two containers and indeed all the
containers arrived with Wire Seals and they did not notice anything wrong
with them, as far as they are concerned the goods were intact.
All the witnesses especially the Tally clerks also testified to the
fact that, if to say, that there is something irregular with the containers
they would have stated so under the remark column on the Tally Sheets and
most importantly, that N.P.A.
would_not have accepted the goods into their custody.
From the testimony of these witnesses and documentary evidence
brought before the court, there is a strong evidence, that the 2
containers in dispute arrived sound
and in intact (sic) and that
the loss of the content of the two containers could not occur while in
their, custody",
[the
underlining mine]
I agree as I cannot fault the
above finding of fact as they are borne out from the evidence in the Records
and what is more, the learned trial Judge saw and heard the witnesses
testify.
At page 11 of the Records, the
learned trial Judge, stated inter alia, as follows:
"In fact Exhibit 'J'
revealed that all the containers landed with
Wire Seals.
It is therefore my opinion that as far as hard facts are
concerned the said numbers, were not seen, noticed or not there at all when
the said containers were offloaded from the ship. The obvious conclusion is
that the said numbers must have been inserted or written
while the goods were in the custody
of_The_Nigerian Ports PLC. This is because_the said discrepancy was
noticed 24 days after the ship had
discharged the said containers.......".
[the
underlining mine]
I agree.
His Lordship continued as
follows:
"Another area that have to be looked at is the
way and manner the said containers were stored.
From evidence, which has not been contradicted, the containers
were stacked in an open area
accessible to all and
sundry. Since it_(sic)
has been so stacked for 24
days, the possibility of the
containers being tampered with cannot be_removed or
ruled out"
[the
underlining mine]
I also agree. All the above
facts, conclusively show, that the Appellants, were
not standing
on a
firm ground,
when they turned their
grouse or complaint/claims, on
the Respondents, instead of the Nigerian Ports PLC which surprisingly and
regrettably, was not joined or made a party to the suit leading to this
instant appeal. There is abundant and uncontroverted evidence in fact agreed
to by all the parties, that the Nigerian Ports PLC, had
complete custody of the said
containers for about twenty four (24)
days when the joint
inspection took place after the containers had been discharged from the
Ship. There is also this solid uncontradicted evidence that if anything had
been found wrong with the containers including the state of the Seals
or Wire Seals, the
Captain, would/could not have signed the necessary document or documents.
Still at page 11, of the
Records, His Lordship stated inter alia, as follows:
"It is trite law that once the containers on goods have left the said Ships
railings, the ship owners will not be held, liable to the goods any longer.
This has also been entrenched as a Clause 10 of the Bill of Lading.
I am therefore from the facts disclosed in this case and
established,
there is no strong evidence to prove that the said containers
and the content (sic) were tampered with while on transit and that means,
while in the custody of the Defendants.
But I am of the opinion that the N
P
PLC or N.P.A.,
should have been joined as a party or sued on
their own considering the
fact that the goods have
been in their actual custody
for about 24 days".
[the
underlining mine]
I have already said so
hereinabove in this Judgment.
The court below - per Oguntade, JCA, (as he then was), at page 170 of the
Records, also referred to the above findings and holdings of the learned
trial Judge and thereafter, stated inter alia, as follows:
"The lower court had seen and heard the witnesses testify. It has not been
alleged that the findings of fact made and the conclusions arrived at were
not supported by the evidence before the lower court".
His Lordship then referred to the case of Lawal v
Dawodu (1972) All NLR 707 @ 722, S.C
which he reproduced and
the cases of Eriri v.
Erhurhobare (1991) 2 NWLR (Pt. 173)
252 @ 272 and
Ebba v, Ogbodo (1984) 1 S C NLR
372 @385 as to the evaluation of evidence by a trial court and
its ascribing of probative values to the said evidence and stated that an
Appellate Court will only interfere, in exceptional circumstances. He
refused to interfere.
Nzeako, JCA (now Rtd.) in
his/her concurring Judgment at page 173 of the Records, stated inter alia,
as follows:
"The findings of fact made by the learned trial Judge seem to emanate from
the evidence before him.
As
one went through the record of proceedings, one question
that kept recurring to one's mind
was why the Nigerian Ports
Authority was not made a party to this suit. They were significant players,
who also had custody of the goods between
the
period of
shipment and the period of
the discovery of the loss, giving
the rise to Plaintiffs cause of action.
The evidence before the lower court did not seem to effectively pin on the
Defendants the tampering with the seals of the containers and the loss
suffered by the Plaintiff. An
[the
underlining mine]
It
is abundantly clear to me that in the instant case, there are
concurrent findings of fact
by the two lower courts. The attitude of this Court in such
circumstances, is now firmly established in a
line of decided authorities.
See the cases of Engr. Osolu v.
Engr. Osolu & 6 ors. (2003) 11
NWLR(fPt.832) 608 @,
631-632, 645;
(2003) 6 SCNJ.
162 @, 178;
First
African Trust Bank Ltd, v.
Partnership Investment Co. Ltd. (2003) 12
SCNJ. 1
@20
and recently.
Madam Amadi v. Orisakwe & 2
ors. (2005) 1
SCNJ.
20 @ 27 (2005)1 S.C. (Pt.,I) 35 and
Chief Awoyoolu & anor. Aro &
anor.
(2006) 2
SCNJ.
44 (&60
and many others.
In conclusion, this appeal
lacks merit. It fails and it is also dismissed by me. I hereby affirm the
decision of the court below affirming the Judgment of the trial court. I
abide by the consequential order on costs as contained in the said lead
Judgment of my learned brother, Onu, JSC.
Counsel
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