IVORY PAPER MILLS LTD V. BUREAU VERITAS, B.V.
In The Court of Appeal of Nigeria
On Monday, the 8th day of July, 2002
GEORGE ADESOLA OGUNTADE Justice of The Court of Appeal of Nigeria
PIUS OLAYIWOLA ADEREMI Justice of The Court of Appeal of Nigeria
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
IVORY PAPER MILLS LTD Appellant(s)
BUREAU VERITAS, B.V. Respondent(s)
PIUS OLAYIWOLA ADEREMI, J.C.A. (Delivering the Leading Judgment): The appellants who were the plaintiffs in the court below (Federal High Court sitting at Lagos) coram Ukeje J. (as she then was) claimed against the respondents as defendants in that court as follows:-
“The sum of N1.8 Million for specific and general damages for negligence and/or breach of duty implied or expressed and/or breach of contract occasioned by the delay in issuing a Clean Report of Findings on the 14th day of November, 1986 (after having certified and inspected the goods on 3rd October, 1986) on cargo of 500 tons of caustic soda pearls from Hamburg on board the vessel MV “William Shakespeare” on Liner Bill of Lading No. 42 dated 3rd October, 1986, thereby making it impossible for the plaintiff to pay its exporter at the official Central Bank of Nigeria rate prevailing on 26th September, 1986″.
Both parties, with the leave of the court, amended their respective pleadings. The final amended pleadings on which the case was fought and defended are the amended statement of claim dated 13th February, 1995 and the amended statement of defence dated 21st December, 1993 and filed on 7th January, 1994.
Both parties called witnesses to prove the averments in their respective pleadings. At the conclusion of the trial and after taking the addresses of counsel, in a reserved judgment delivered on 29th May, 1996, the learned trial judge, in dismissing the plaintiff’s claim in toto, has reasoned thus:
“The law applicable to this suit is the Pre-Shipment Inspection of Imports Act (Cap 363 LFN, hereafter in this ruling referred to simply as “the Pre-shipment Act) I shall, therefore examine the rights and liabilities of the parties herein in the light of that enactment ….
In his evidence-in-chief and under cross-examination, P/W1, Ashok Kumai, a Director of Tan West, the Exporters of the goods herein, in a nutshell, testified that upon the defendants accepting thereafter for the sale of the goods herein the plaintiff was required to establish a confirmed Letter of Credit. The plaintiffs were unable to open a letter of Credit and the Exporter and Importer unilaterally between themselves changed the mode of payment from Letter of Credit to Bills for Collection, such that at the end, no letter of Credit was sent by the plaintiff or received by the Exporter.
Similarly, the evidence of P/W2, Stephen Stravrou, employee of the plaintiff company, testified under Examination-in-chief, cross-examination and re-examination that on account of their inability to secure a Letter of Credit, that Bills for Collection or Open Account was the only choice open to us”. That because of our personal guarantee to pay, there was no need for Letter of Credit.
It therefore becomes clear that no Letter of Credit was opened and so none was sent to the Exporters to the inspecting agent vide EXH GIO on which was written-Term of Payment changed to cash against documents, so no Letter of Credit is available for same………..
It is beyond controversy therefore, that no Letter of Credit was forwarded to the defendants by the plaintiffs and their agents.
Upon the preponderance of evidence before this court, both oral and documentary exhibits, it is beyond controversy that:-
(1) No Letter of Credit in terms of the Form M was forwarded by the Overseas Exporter to the Inspecting Agent, the defendant herein, prior to the inspection of the goods and the shipment of the goods.
In Ex G9 dated 10/10/86, the defendant inter alia wrote to the plaintiff’s Overseas Exporter-
(1) Following (6) documents are not yet received
(i) Copy of Letter of Credit and Amendment.
(ii) Technical description of the goods
(2) Therefore, no Clean Bill of Findings or Letters Of Credit were attached to the shipping documents sent to the plaintiff to assist in clearing the goods.
The goods were inspected on 3rd October, 1986. The vessel MV William Shakespeare arrived Nigeria on 22nd October, 1986. And the Clean Report of Findings was issued on 11th November, 1986.
Therefore, the defendants obviously did not comply with the pre-requisite statutory pre-conditions as set out in Section 1 of the Pre-Shipment Act…………………..
It follows therefore that once the Exporter/Importer fails to obtain a Clean Report of Findings under Section 2 (1), 8 such Importer/Exporter finds himself at the mercy of the Inspecting Agent, who mayor may (sic) decline to issue the Clean Report of Finding. And in this case, issued it on a date of 30th October, 1986. Being the exercise of a discretion this court cannot find that it was wrongly exercised particularly as the plaintiff itself or its agents were grossly contributory to that situation.
I therefore find that the defendant does not in the circumstances of this case, owe the plaintiff any duty of statutory care…………………
In this case, the CRF was not presented together with shipping documents, thereby removing the plaintiff’s import from the benefits of that section.
Accordingly, the loss suffered by the plaintiff flows from statutory provisions and do not flow from any action attributable to action or default of the defendants”.
Dissatisfied with the judgment, the plaintiffs/appellants have appealed to this court upon a Notice of Appeal that carries ten grounds. Distilled from the said grounds of appeal are six issues for determination. Set out in the appellants’ brief of argument, the said six issues are in the following terms:
(1) Whether the learned trial judge made a correct exposition of the laws in respect of the matter or properly considered the laws relating/governing the issues.
(2) Whether the learned trial judge made a correct appraisal of the evidence presented and the exhibits tendered by both parties?
(3) Whether the learned trial judge misdirected himself (herself) in any way as to the proof necessary to establish the appellant’s case?
(4) Whether the judgment of the Federal High Court is perverse?
(5) Whether the learned trial judge was right in raising the issue of “illegality” (if any) suo motu without calling the parties to address the court on it?
(6) Whether on the law and the evidence on record the appellants succeeded in proving their case and were entitled to judgment?
The respondents, for their part, identified only two issues for determination and as couched in their brief of argument, they are as follows:
(1) Whether the learned trial judge was correct in her holding that negligence was not proved in the issuance of the CRF dated November 14th, 1986?
(2) Has the learned trial judge’s decision occasioned a miscarriage of justice as to be set aside?
When this appeal came before us for argument on the 14th of July, 2002, Chief Idowu, learned counsel for the appellants adopted his clients’ brief filed on 14th March, 2000 and urged that the appeal be allowed. Mr. Ifidon learned counsel for the respondents, also adopted his clients brief filed on 12th March, 2001 and urged that the appeal be dismissed. I have reflected carefully on the issues raised for determination by the two parties: it seems to me that issues No. 1 and 5 on the appellants’ can be taken together. Issues No. 2, 3, 4 and 6 on the said brief can also be taken together. I have related the appellants’ issues to the two identified by the respondent for determination; and it is my view that issues No. 2, 3, 4 and 6 on the appellants’ brief of argument can be considered along with the two issues raised by the respondent. I propose to address the issues in the manner I have set them supra. Before then, I shall like to identify the case of each party as raised in their respective Pleadings. A reading of the amended statement of claim reveals that the plaintiff/appellants a limited liability company and importers obtained FORM M for the importation of caustic soda. The condition for the sale of the caustic soda to them was the establishment of a Letter of Credit in favour of TANWEST LIMITED who was favoured with a copy of the FORM M when the appellants were faced with difficulties in opening an irrevocable letter of credit from any bank in Nigeria; at their request TANWEST agreed to change of terms of payment from Letter of Credit to Bill of Collection shipment of the goods was arranged and the appellant quickly informed the respondents. Upon the arrival of the goods in Nigeria on board “WILLIAM SHAKESPEARE” they were inspected by the respondent on board the ship on the 3rd of October, 1986.
According to them, a Letter of Credit guarantees the exporter payment of his money whilst a Bill of collection does not guarantee the exporter payment in the event of the importer reneging on his promise. All documents needed were supplied except the Letter of Credit. They further averred that all communications between them and the respondents were always done timeously. The Respondents issued the Clean Report of Findings on the 14th November, 1986 for goods inspected on the 3rd October, 1986. Since the appellants could not clear the goods until the issuance of the Clean Report of Findings the appellants were incurring demurrage charges since 22nd October, 1986 when the vessel arrived with the cargo. The amended FORM M requested for by the respondents was sent to them on 28th October, 1986. They again averred that the respondents acted ultra vires their powers in the issuance of a Clean Report of Findings. The breaches committed by the respondents caused the appellants heavy financial loss. In their defence through their amended statement of defence, the respondents made a flat denial of owing any duty of care to the appellants as there was no contractual relationship between them. They further aver that even if the appellant’ facts as to the alleged negligence preferred against them are true (which they denied) the alleged delay in the issuance of a Clean Report of Findings was reasonable in the circumstances of this case. It was also their contention that the date on the Clean Report of Finding must be that of the date on which it was issued and not the date of inspection. Act of State was also pleaded as defence to any facts of nigligence pleaded by the appellants which they (respondent) could not have reasonably contemplated. They also denied that the appellants suffered any financial loss.
In the alternative, it is the contention of the respondents that by trade customs, even if they are adjudged to be liable the maximum liability is limited to ten times the fee charged for the service provided which by their own calculation is 0.98% of the value of the goods inspected. The above is the resume of the different stand points of the parties as gleaned from their respective pleadings.
I shall now take issues No. 2, 3, 4 and 6 on the appellants’ brief and issues No. 1 and 2 on the respondents’ brief which I have set out above. On these four grounds, the appellants, in their brief of argument after reviewing the evidence led, submitted that the fact that negligence occurred should be inferred from the facts proved and admitted. Failure on the part of the trial judge to so infer is a failure of his duty to properly evaluate the evidence before him. The trial judge, they then submitted failed to properly evaluate the evidence before him reliance was placed on cases the like of DIMBRINE SILLI V. MOSOKA (1997) 1 NWLR (PT 479) 98 and UWEGBA V. A-G. BENDEL STATE (1986) 1 NWLR (PT 16) 303. It was their submission that the appellants have proved that the respondents owed them a duty of care which they (respondents) have breached. The judgment of the court below, they therefore submitted is perverse for the reasons of taking into account issue of illegality, which according to them, was irrelevant and not carrying out a proper evaluation of the evidence before the court. They further reasoned that if a thorough evaluation of the evidence had been done and unchallenged evidence had been acted upon, the learned trial judge would have seen his way clear to entering judgment in favour of the appellant: the cases of NARUMAL & SONS (NIGERIA) LTD V. NIGER BENUE TRANSPORT CO.LTD (1989) 2 NWLR (PT 106) 730 and NIGERIA MARITIME SERVICES LTD V. AFOLABI (1978) S.C. 79 was cited in support. On the other hand, the respondents had argued that if they owed anybody any duty of care it was the Federal Government of Nigeria – their appointing principal. They further argued that if Section 2 of the Evidence Act prescribes any duty of care at all on the issuance of a CLEAN REPORT OF FINDINGS, it is to the overseas seller and not the appellant, the purchaser in this transaction; the decision in MARC RICH & CO. A-G. V. BISHOP ROCK MARINE CO. LTD. & ORS (1994) 1 WLR 1071 was relied upon for this submission. They further submitted that the appellant would come within the bracket of proximity of case if the inspector misrepresented the quality quantity or price not favourable to the appellant as in the case of S.G.S. V. RASTICO (NIG) LTD (1992) 6 NWLR (PT 245) 93 the facts of which according to them, are distinguishable from those of the present case. Arguing in the alternative, the respondents submitted that even if a duty of care existed between the respondent and the appellant, that duty supposedly owed by the respondent to the appellant would not arise until Letters of Credit or any other document amending the FORM M to read the actual mode of payment was received. The respondents again reasoned that even if there was a breach, on the evidence before the court, there was a break in the chain of causation and therefore the defendant/respondents’ action cannot be said be the proximate cause of the damage suffered by the appellant; they relied on the case of SHELL PETROLEUM V. OTOKO (1990) 6 NWLR (PT 159) 693. Continuing they again contended that the whole of the proceedings was bereft of evidence in support of the quantum of damages claimed. On issue No 2 it was submitted that there was no miscarriage of justice.
The whole case is premised on the alleged negligence of the defendant/respondent. Let me observe that any breach of duty of care, whether it is grave or venial, which cause a loss constitutes negligence. It must also be said the negligence is a question of fact, not one of law and it must be decided in the light of its own facts. In order to succeed in an action for negligence, the plaintiff must be able to show that the defendant owes him a duty of care that he has suffered damage in consequence of the defendant’s breach of that duty owed him. See KALLA V. JARMAKANI TRANSPORT LTD (1961) ALL N.L.R. 747. That duty however may exist independently of the existence of a contract between them. I must also remind myself that it is not every act or omissions which any moral code would censure that would afford every person injured by them to seek a relief against the done. It seems to me that only those acts or omissions which can reasonably be foreseen would be likely to injure any person if reasonable care is not taken to avoid them that will confer right of action on any person so injured by them. I shall now examine the evidence preferred in Hearing of this case started before Muhammed J. (as he then was) on the 9th of October, 1990. Indeed, the learned judge took the evidence of P/W1 and P/W2 before his preferment to the Court of Appeal. By agreement of counsel on both sides, when the case was later assigned to Ukeje J. (as she then was), evidence of P/W1 and P/W2 who could no longer be reached was adopted by the new trial judge. In a considered ruling of the court, the evidence of the two witnesses was adopted and the case proceeded from therein the court below by the parties.
The 1st P/W one ‘Ashok Kumai called by the plaintiff in his evidence said:
“The plaintiffs wanted to buy caustic soda. I gave them my offer which they accepted. After accepting my offer-the condition of my offer was that the plaintiff will establish a Letter of Credit in our favour for the supply of the said goods. They obtained FORM M for the importation of the soda and sent us a copy thereof, with a promise that Letter of Credit will follow soon. Later on they told us that they had difficulties in obtaining L.C. from any bank in Nigeria due to austerity measures. In the meantime Tanwest had already arranged to supply the caustic soda. In the absence of L.C. and the request from the plaintiffs we agreed to change the terms to Bills for collection. Accordingly, we arranged for shipment of the goods.
Before the goods were exported to Nigeria, we asked for the goods to be inspected. The inspection was carried out on 3/10/86 by the defendants. We obtained payment from Nigeria along with all other shipping documents. We needed to obtain a Clean Report of Findings issued by the defendants. We submitted all papers to the defendants except the LCS which we did not have. In the absence of the LCS, the defendants asked us to seek an amendment in the FORM M as to the terms of payment. We contacted the plaintiff to obtain the amendment from their bankers – D.B.A. They obtained the required amendment and sent a copy to us by courier ……….
In spite of several requests to obtain Clean Report of Findings from the defendants in Brussels, we did not obtain it until 14/11/86. On 13/10/86 the defendants issued a qualitative and quantitative report dated 13/10/86 – Ex. A.
I am aware that the plaintiffs completed forms M – Exhibits C and C’. The caustic soda was shipped on WILLIAM SHAKES PEARE Bills of Lading were issued in respect of the caustic soda – Exhibits D and D1. I am aware that Clean Report of Findings was issued by the defendants.”
The two Clean Reports of Findings together with their attachment were tendered as Exhibits E and E1 . While the letter amending the terms of payment was tendered as Exhibits F, P/W in the confirmation of his evidence-in-chief said:
“When I received a letter from the plaintiff, I started chasing the defendants to see whether they received their own copy. They kept on saying that they did not receive such amendment. Finally they asked me to send a copy of the letter I received and I duly sent a copy to them. I sent the copy to them by DHL Courier Service. After sending the copy I was in constant touch with the defendants. The defendants did not act on the copy of the letter I sent to them.
When cross-examined he said:
“When I made the offer to sell the caustic soda to him I gave him two conditions: (1) Letter of Credit and (2) Obtaining Form M. When I received the copy of Form M I was satisfied with them……………….. requested the defendants to inspect the goods around 21/9/86. Normally when a pre-shipment is carried out, the inspectors would send us a questionnaire. In our case the defendant did not send us a questionnaire. In the absence of the questionnaire we requested by telex to carry out the inspection after I received the Form M. I did not receive the Letter of Credit. I do not believe the Letter of Credit is important to the defendants in order to carry out the inspection.
The goods were inspected on 3/10/86.
I submitted all the documents required by the defendant after I have received the questionnaire except the L.C which I did not have. The goods were shipped without the L C. The L C is for payments.
The importer is to make deposit with his bank and the bank will credit the money overseas. I haven’t collected the money. The money was due in 1986 Before I could get my money, the goods must have been cleared.
The goods were cleared in early January, 1987.
None of my actions caused delay in the matter”.
The 2nd P/W – Stephanes Steavrou, the General Manager of the appellant/company confirmed the evidence of the 1st P/W in all material respect and as to the role expected of the defendants, he said under examination-in-chief:-
“After this, we learnt that the amendment has not reached Brussels, so we went back to the bank on 28/10/86 and they assured us and showed us the amendment was sent to C.B.N. and the defendants. We have gone to the defendants on several occasions to request them if they have sent the amendment. To our surprise all the time we were refused to be attended to.
They said they were not duty bound to us and that they were only duty bound to FGN”
As at March 1987, the appellants had cleared all the goods but the suppliers were yet to be paid as a result of the introduction of SFEM. He claimed that the circular issued by the C.B.N. following SFEM covered all importers who obtained licence in 1986. Although, as he claimed, they fulfilled all the conditionalities of the C.B.N the date on the Clean Report of Finding inserted by the defendants/respondents was a major problem which caused the CBN to reject their claim hence their inability to pay Tanwest. They were refused to be included in the rate of exchange but they were asked to apply at the rate of SFEM. All their efforts to get the defendants to intercede with the C.B.N. on their behalf proved abortive. P/W3 Samuel Ayeyi, a Senior Manager at the D.B.A. at the Wharf Road Branch said they made an application for foreign exchange to the C.B.N. on behalf of the appellant, but, according to him, that application was rejected on the ground that a Clean Report of Findings, a necessary document for clearing of goods at the Nigerian Ports was dated 14/11/86 as against 31/10/86, which was the requirement of the Federal Government as evidenced in the introduction of a new system called SFEM to weed the difficulties brought about by the scarcity of foreign exchange in 1986. It was his further evidence that the goods could not be cleared because there was no Clean Report of Finding, an important document for clearing goods. He went further to say that the Report was not released because the defendants, who are government agency, wanted the plaintiff to change their mode of payment which was formerly irrevocable letters of credit to Bills for Collection – an open account transaction. The defendant, he said withheld the Clean Report of Finding but issued a certificate of Fitness which accompanied the goods to Nigeria pending when the plaintiff would change the mode of payment. Following the written complaint his bank received from the plaintiff on 23/10/86 that the ship arrived at Nigeria Port on 22/10/86 without the Clean Report of Finding and that the government agent wanted the plaintiff to change the mode of payment from irrevocable letters of credit to Bills of Collection before the Clean Report of Finding could be released and a request that the defendants should be accordingly advised; they quickly advised the defendant accordingly through Ex F. The defendant, he further said did not reply their letter of 23/10/86. The reply from the defendant, explaining the delay in the issuance of the Clean Report of Finding would have been used by the U.B.A. to convince C.B.N. to reconsider the plaintiff’s application for allocation of foreign exchange and the plaintiff would have been able to remit the fund then at the rate of US & 1 to Nigeria Naira 1.33, the prevailing rate then. The US$ 200,000.00 would, according to him, at the time he was testifying, have been remitted at N21.996 to the dollar if there was no delay by the defendant. The only witness called by the defendant/respondent, Dupont Alain said under examination-in-Chief that:
“At the time of the receipt of Form M, the mode of payment was by Letters of Credit. Once the Form M is sent overseas, we require the Importer to give us all necessary documents for inspection, all documents necessary, including the parking list of the goods to be inspected. In this case we needed to have a copy of the Letter of Credit:
And when the documents were sent to us the Letter of Credit was not included and we asked the importer to give it to us. This we did as soon as we received the documents. That was on 14/10/96. The exporter replied to us that the mode of payment had changed; immediately we informed the exporter that we needed to have an official confirmation from the bank. In the meantime, the inspection was carried out but we were not able to issue the final document that is the Clean Report of Findings, before receiving information that the mode of payment had changed from the bank. This document was only received in our Lagos Office on 6/11/86. Copy was sent to our office in Belgium and a Clean Report of Findings was issued on 14/11/86.
We were mandated by the Federal Government of Nigeria.
We had no contract with the plaintiff. Once we have issued a Clean Report of Findings, it is impossible to change it. The Clean Report of Findings can only be cancelled by the Central Bank of Nigeria which requires the issue of a new Clean Report of Findings.
Under cross-examination the witness confirmed that he was aware that they wrote a letter to the plaintiff requesting them to change the mode of payment from letter of credit to bill for collection. He agreed that part of the duties of the defendant was to pass information to CBN and to prevent economic disaster to the country and it is also part of their function to ensure that the importer is not prejudiced by the importation.
It was his further evidence that Clean Report of Findings was issued on 14/11/86, the CBN circular directing an importer to pay at the official rate of the Clean Report of Findings before 30/10/86 was dated 11th December, 1987, but the amendment necessary to issue CRF was received from U.B.A. on 6/11/86.
As I have said earlier in this judgment, the case of the plaintiff/appellant is premised on the alleged negligence of the defendant/respondent. There is nothing on the record establishing the existence of a contractual relationship between the appellant and the respondent. Hence, I must bear in mind that the proper definition of negligence as it relates to the two parties must be one which does not take cognisance of the relationship established by contract. But in all human relationships, exercise of duty of care by one person to the other is of utmost importance.
The definition of “negligence” which has been most frequently quoted and even adopted by the courts of our land is that given by ALDERSON, B, in BLYTA V. BIRMINGHAM WATER WORKS CO. (1856) L.R. 11 Exch. 781 where he observed:
“Negligence is the omission to do something which a reasonable man and reasonable man, guided upon those considerations which ordianrily regulate conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”
As I have said, the above dictum of Alderson was given approval by the courts of our land see AKINRINMADE & AN VS. LAWAL (1996) 2 NWLR (PT 429) 218. It seems to me that the proposition which the plethora of authorities on the definition of the word “negligence” suggest, and which can properly be deduced from them is that whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who thinks, and must think, as a reasonable man, would at once recognise that if he does not use ordinary care and skill in his conduct with regard to those circumstances, he would by his conduct, inflict injury or danger of it to the person or property of the other, then in such circumstances, a duty arises to use ordinary care and skill to obviate such danger. This, in my view, is a summary of the concept of “WHO is MY NEIGHBOUR” as expounded by the House of Lords (England) in the well-known case of M’ALISTER (or DONOGHUE V. STEVENSON (1932) A.C. 562. It is for this reason; bearing in mind the above dictum, that I said that duty can possibly arise independently of a contract once the occurrence of danger is reasonably foreseeable.
That the Clean Report of Findings was issued on 14th November, 1986 outside the date – 31st October, 1986-the dead line set for the avoidance of the application of SFEM is not in dispute between the parties. If the Clean Report of Findings had been dated 31st October, 1986 the remittance of the sum of US$200,000 to the exporters would have attracted the then prevailing rate of $1 to M1.33, instead of $1 to M21.996 which the application of SFEM dictated. But the defendant had contended that the amendment necessary for the issuance of Clean Report of Findings was only received by them on 6th November, 1986. The letter dated 23rd October, 1986 addressed by D.B.A. to the defendant informing it that the mode of payment had changed from Letter of Credit and requesting the defendant to release the Clean Report of Findings to enable the customer to clear their goods was infact only received on 6th November, 1986 going by their stamp on it. The appellant did not lay any contrary evidence as to the date claimed by the defendant/respondents that they received the letter.
Again, the Central Bank of Nigeria circular-Exhibit M – directing payment at the official rate before 30/10/86 was dated 11th December, 1987. It has not been disputed that Pre – Shipment Act Cap 363 Laws of the Federal Republic of Nigeria is the relevant law applicable to this case. Section 1 (1) thereof states that no goods shall be imported into Nigeria unless a Clean Report of Findings has been issued in respect thereof; sub-section (2) stipulates that any person wanting to import any goods to Nigeria to which the Act applies shall before shipment of such goods to Nigeria furnish the C.B.N with the particulars specified in the schedule to the Act. In paragraph 7, 9 and 10 of the amended statement of defence the defendant/respondents had averred:
Further to the last preceding paragraph, the defendant will further contend that it was entitled to take extra care and time in crosschecking the plaintiff’s papers in view of the deluge of work caused by several other companies in the plaintiff’s position who were all attempting to evade Nigerian Government regulations to wrongly claim entitlement to remit foreign currency at favourable rates.
In further answer to paragraph 10 of the statement of claim, the defendant will contend that it was not only entitled, but duty bound to date the Clean Report of Finding with the date it was issued, and not the date the inspection was carried out.
In further answer to paragraphs 16, 17, 18 and 19 of the statement of claim, the defendant will contend that the facts alleged constitute an act of state, which was not in the reasonable contemplation of the parties at the commencement of the transaction.
From the evidence before the court below, there was no compliance with the provisions of Sec. 1 (1) and (2) of the Pre – Shipment Act. Violation of the clear provisions of the law can never constitute the foundation for bringing an action, seeking reliefs in a court of law. The pre-condition set out in plain language must be seen to be complied with to ground an action see AMADI V. NNPC (2000) 10 NWLR (PT 674) 76. I have read the decision in HEDLEY BYRNE & CO. LTD. V. HELCER & PARTNERS LTD. (1963) 2 A.E.J. 575 the clear re-statement of the principle of duty of care as expressed by the House of Lords in that case is well taken. However, I wish to remark that no court of law will lend its aid to the enforcement of the principles underlying duty of care where it is manifest that it will translate into carrying into effect that which is prohibited by the law of the land, as in the instant case. Indeed, an action does not arise from a base cause – this principle is well enshrined in the Latin Maxim EXTURPI CAUSA NON ORITUR ACTIO. The law will never permit anyone to take advantage of his own wrong doing. The defendant was justified in refusing the promptings to back-date the Clean Report of Findings. It owes no duty of care to the appellant whose pre-occupation was to violate the laws of the land. It is for this reason that I agree with the learned trial judge in her finding that the defendant/respondent does not owe the plaintiff/appellant any duty of care. I therefore answer Issues No. 2 and 6 of the appellants’ brief in the affirmative while I answer issues No. 3 and 4 on the same brief in the negative. Also flowing from what I have being saying issue No 1 on the respondent’s brief is answered in the affirmative while the second issue is answered in the negative; I resolve it in favour of the respondent. With respect to issues No. 1 and 5 on the appellants’ brief, all I wish to say is that the parties are ad idem that Pre-Shipment Inspection of Import Act Cap 363 Laws of Federation of Nigeria 1990 which subsumes the common law principle of duty of care is the applicable law to this case. From what I have being saying, the learned trial judge, in my respectful view made a thorough exposition of the law in her judgment Issue No 1 on the appellant’s brief is therefore answered in the affirmative. On issue No 5 I wish to say that the learned trial judge did not suo motu raise the issue of “illegality” rather illegality benefited itself from the application of the applicable law to the evidence led. The learned trial judge was therefore right in coming to the conclusion that the suit is tainted with illegality. In the final analysis, having regard to all I have being saying it is my judgment that this appeal is devoid of merit. It must be dismissed while the judgment of the court below is sustained. I assess the cost of this appeal at N7, 500.00 in favour of the respondent.
GEORGE ADESOLA OGUNTADE, J.C.A.: I agree.
AMIRU SANUSI, J.C.A.: I have had the benefit of reading before now the judgment just delivered by my learned brother Aderemi JCA. I entirely agree with his reason and conclusion. I have nothing to add. I agree that the appeal lacks any merit. While dismissing the appeal. I also abide by the order of cost assessed and awarded in the lead judgment.
Chief E.O.A. Idowu with him Mr. Taiwo AlakosoFor Appellant
Mr. O. IfidonFor Respondent