MAERSK NIGERIA LIMITED & ANOR v. ZATS INTERNATIONAL LIMITED
(2012)LCN/5527(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 3rd day of July, 2012
CA/PH/364/2008
RATIO
APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS INTERFERING WITH THE FINDINGS OF THE LOWER COURT
Now, an appellate court will not interfere with the findings of fact made by the court below where there is sufficient evidence in support of such findings and where there is no substantial error apparent on the record. See WOLUCHEM V. GUDI (1981) 5 SC 291; BALOGUN v. AGBOOLA (1974) 10 SC. 111. PER T. O. AWOTOYE J.C.A.
PLEADING: EFFECT OF AN AVERMENT IN PLEADING NOT SUPPORTED BY EVIDENCE
An averment in the pleadings on which no evidence is called in is deemed abandoned. See YUSUF V. OYETUNDE (1998) 12 NWLR (Pt.579) 483. PER T. O. AWOTOYE J.C.A.
EVIDENCE: WHETHER DOCUMENTARY EVIDENCE NEED BE SUPPORTED BY ORAL EVIDENCE
Even where documents are pleaded and tendered in support of a fact, they ought to be demonstrated in open court to avert a situation whereby the court would retire into chambers to do private investigation. Documents admitted in evidence would not be of much assistance to the court in the absence of admissible oral evidence from persons who can explain their purport. See Alao v. AKANO (2005) 11 NWLR (Pt.935) 160. PER T. O. AWOTOYE J.C.A.
JUSTICES
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
1. MAERSK NIGERIA LIMITED
2. SAFARINE NIGERIA LIMITED Appellant(s)
AND
ZATS INTERNATIONAL LIMITED Respondent(s)
T. O. AWOTOYE J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal against the judgment of R. O. Nwodo J (as she then was) delivered on 8/11/2007.
The respondent which was the plaintiff at the court below had instituted an action against the defendants (now appellants) claiming as per paragraph 15 of its amended statement of claim as follows:
“WHEREFORE, the plaintiff claims against the defendants jointly and severally for the following reliefs, namely:
(1) the sum of $139,528.50 representing the purchase price of plaintiffs 424 Bales of Norwegian STOCK FISH SEY shipped by APEX MARKETING & SERVICES IN OSLO, NORWAY to the plaintiff through the defendants vessels as carrier or 12th March 2004 and 16th July, 2004 respectively, and which bales of stockfish were completely damaged aboard the defendant vessels.
(2) the sum of N2,636,761.93 representing the customs duty paid by the plaintiff for the damaged two consignments of Norwegian Stockfish Sey shipped by Apex Marketing & Services to the plaintiff on 12th as carrier of the Cargo.
(3) AN ORDER directing the defendants to pay to the plaintiff the sum of N7,850,000.00 being half local market value of a consignment of 314 Bales of Stockfish Sey shipped to the plaintiffs by Apex Marketing & services on 12/3/2004 which were partly damaged, due to the failure of the defendants to deliver the consignment within time.
(4) the sum of N100,000,000.00 against the defendants being loss of profits and goodwill sustained by the plaintiff due to the non diligent manner the defendants handled the plaintiffs consignments of Bales of Stockfish which lead to total damage by damp and sea water of 424 Bales and eventual desertion of the plaintiff by its customers.”
After close of pleading and hearing of parties the learned trial judge entered judgment in favour of the plaintiff but against the defendant in the following terms:
“IT IS HEREBY ORDERED that judgment is entered in favour of plaintiff as follows against the defendant jointly and severally:-
1. The sum of $139,528.50 representing the purchase price of plaintiffs 424 Bales of Norwegian STOCK FISH SEY shipped by APEX MARKETING & SERVICES IN OSLO, NORWAY to the plaintiff through the defendants vessels as carrier or 12th March 2004 and 16th July, 2004 respectively, and which bales of Stockfish were completely damaged aboard the defendants vessels. .
2. Relief 21 is dismissed.
3. the defendants are directed to pay to the plaintiff the sum of N7,950,000.00 being half local market value of a consignment of 314 Bales of Stockfish Sey shipped to the plaintiff by Apex Marketing & Services on 12/3/2004 which were partly damaged, due to .the failure of the defendants to deliver the consignment within time.
4. Relief 4 is dismissed.
Aggrieved by the judgment, the defendant appealed filed on 24/2/2010 on seven grounds.
The seven grounds (shorn of the particulars) are
“GROUND 1
The learned trial judge erred in law when she held that the plaintiff has locus standi to institute and maintain this action.
GROUND 2
The learned trial judge erred in law when she held that the plaintiff was not a notify party as envisaged in the column for the notify party in the bill of lading Exhibit L.
GROUND 3
The learned trial judge erred in law when she interpreted the provision of section 16(3) of the Admiralty Jurisdiction Act of 1991 and held that the Appellants as agents of the carriers were proper parties to this suit.
GROUND 4 –
The learned trial judge erred in law when she held that the defendants had no right to limit their liability and proceeded to award the invoice value of the plaintiffs goods.
GROUND 5
The learned trial judge did not properly evaluate the evidence adduced before her at the trial and thereby came to a wrong conclusion when she found the Appellant liable for the cause of damages to the Respondent’s consignment.
GROUND 6
The learned trial judge erred in law when she held that the Appellants’ foreign principals acceptance vide Exhibit e of the Respondent’s cargo redirection request from Onne part to Apapa part Lagos established a valid agreement.
GROUND 7.
The judgment is against the weight of evidence.”
The appellant’s brief of argument was filed on 24/2/2010. Therein the appellants formulated four issues for determination as follows:-
(i) whether the respondent had locus standi and/or title to sue in respect of the consignment of stock fish covered by bill of lading No. OSLZ02763 dated 21st July, 2004 which bill was tendered and admitted as Exhibit L. before the trial court.
(ii) Whether the provisions of section 16(3) of the Admiralty Jurisdiction Act of 1991 is applicable to the facts of this matter to make the appellants proper parties to this suit and consequently liable for the ‘respondents claim.
(iii) Whether the Appellant were entitled to limit their liability for damages to the respondent on the evidence before the lower court.
(iv) Whether the findings of fact and/or conclusions reached by the trial court as to the cause(s) and culpability for the alleged damage to the respondent’s consignment of stockfish was supported by evidence of record.”
On issue (i) learned senior counsel for the appellant stated that on the face of Exhibit L, Apex Marketing and Services was described as shipper, Assurance Bank Nigeria limited as the consignee and Zats International limited (the respondent) as the notify party. He added that the endorsement made by Assurance Bank Limited was in favour of Libac Nigeria Limited.
He therefore submitted that he learned trial judge erroneously proceeded to take the respondent out of the ambit of a notify party contrary to well established judicial authorities, He relied on ADESANYA V. LEGIGH HOEGH & CO (1969) 1 ANLR.333, SEATRADE V. FIOGRET LIMITED (1987 – 1990) 3 NSCC 453, PACERS MULTI DYNAMIC V. M.V. DANCING SISTER (2000) 3 NWLR (PT.648) at 241. He also referred to section 375(1) of the Merchant Shipping Act Cap. 224 Laws of the Federation of Nigeria 1990.
He urged the court to resolve this issue in favour of the Appellants.
On issue No. 2 learned senior counsel, Koku SAN, submitted that there were two conditions that must be satisfied before” the provisions of section 16(3) of the Admiralty Jurisdiction Act of 1991 could apply to make an agent personally liable irrespective of the liability of his principal. He submitted that the respondent must prove that the act, default, commission or commission was done in Nigeria. He must also show reasons why the appellants should be held liable in spite of the liabilities of their principal. He relied on M.V. “CAROLINE MAERSK” SISTER VESSEL TO THE M. V. “CHARISTIAN MAERSK’ AND TWO OTHERS V NOKOY INVESTMENT LIMTTED (2002) L2 NWLR (PT.782) page 472, HILARY FARMS LTD V. M/V MAHTRA (2007) 14 NWLR Pt.1054 page 210. He finally submitted that form the totality of evidence adduced at trial and the above decisions of the Supreme Court section 16 (3) of the Admiralty Jurisdiction Act 1991 was not applicable to the facts of this matter. He urged the court to resolve the issue in favour of the appellants.
On issue No.3 learned senior counsel citing M. V. CAROLINE MAERSK V. NOKOY INVESTMENT LIMITED (supra) and HILARY FARMS LTD V. M/V. MAHTRA (supra) submitted that the law was settled that parties in a contract of carriage of goods by sea were bound by the terms contained in the bill of lading, He submitted that clause 7 an the reverse sides of Exhibit L & M was the applicable clause governing compensation and limitation of the carriers liability.
He submitted that the question of compensation could only be determined by referring to clause 7(1) which prescribed the invoice value of the shipment as the measure of damages.
Learned senior counsel submitted that should the court hold the appellants liable for the alleged damage on the first shipment the sum of 24,067 U.S. Dollars would be the invoice value of 74 damaged bales which approximated 85% of 87 bales at 325.5 U.S. Dollars per bale.
Mr. Koku SAN submitted on the second shipment covered by Exhibit L, that the respondent was not entitled to any damage on the ground that it was merely a notify party on the fact of Exhibit L.
On relief 3 learned senior counsel submitted that the award of half the market value of the alleged partly damaged bales in respect of the first shipment to the respondent was not supported by evidence.
He posited that if the sum of N304,000 endorsed on the receipt as the price for which-38 partly damaged bates were sold was divided by 38, it would immediately become apparent that the cost of sale would be N8000 per bale and not N25,000.
He urged the court to set aside the award which he submitted could bit be justified by evidence on record.
On issue No.4 learned senior counsel submitted that ascribing liability to the appellants by the learned trial judge for the alleged damage to the respondents consignment of stock fish could hot be supported by evidence. He urged the court to resolve issues 4 in favour of the appellant and allow the appeal.
The respondent’s brief was settled by F. O. Okoro counsel for the respondent. He formulated one sole issue for determination to wit:
“whether the decision of the learned trial judge was correct given the facts as proved exhibits admitted and the circumstances of the case?
Learned counsel for the respondent submitted that the current position of the law is as espoused in BRAWAL SHIPPING NIGERIA LTD v. ONWADIKE (2000) 11 NWLR (PT, 678) 387 at 410 – 411, BOOTHIA MARITME INC V. FAREAST MERCANTILE CO. LTD (2001) 9 NWLR PT. 719 page 572. He stated that the Bill of Lading was not the final document in determining whether the endorser was a mere notify party but the court must look at the entire documents forming part of the transaction to decipher the actual intention of the parties. Learned counsel referred to the various documentary exhibits tendered at the court below and the evidence of the respondents’ witness which he claimed were unchallenged. He further pointed out the fact that the respondent name was endorsed in blank on the back of Exhibit L which should have changed it to a bearer Bill of Lading. He submitted that the learned trial Judge was right to have held that the respondent was not just a mere notify party and urged the court not to disturb the finding of the lower court on this issue.
Learned respondent counsel added that in an action arising from damages arising form the tort of negligence the owner of the goods or the person entitled to possession of the goods at the time of that tort could sue. He relied on (1) section 375(1) of the Merchant Shipping Act cap 225 LFN 1990. (2) CARDANO & GAMPRERI CREEK PETROLEUM V. MAMIDAKIS & CO. (1961) 2 LLOYDS REP. 259, REP. 259 and others cases.
On the contention of the appellants that they were not proper parties unless it was shown that the omission or commission of the carrier was in respect of anything done or failed to be done in Nigeria, learned respondents counsel submitted that this was a fresh issue raised without leave of this court and so it was incompetent.
He submitted that a combined reading of section 16(3) of Admiralty Jurisdiction Act and section 1(2) of the same Act made the appellant proper parties in this suit. He urged the court to follow the decision in CROSS MARINE SERVICE LTD V. ONYEKA (2005) 3 CLRN 57.
He urged the court to hold that the liability of the carrier for the damages was established and the appellant having admitted agency relationship were liable under section t(2) and 16(3) of the Admiralty Jurisdiction Act.
On limitation of liability learned counsel submitted that in view of the peculiar facts of this case and the exhibits admitted the Appellants were not entitled to limit their liability because the taws applicable were Merchants Shipping Act and the Admiralty Jurisdiction Act which said laws override the clauses in Exhibits L and M. These laws did not limit appellant’s liability. He submitted further that the appellant’s liability would have been limited under carriage of Goods by Sea Act but the said Act was not applicable to this case as the respondents consignments were transported from the Port of Oslo Norway to ONNE Port in Nigeria.
He contended further that the words on the reverse side of Exhibits L and M being so minute and unreadable the approach as stated in SCRUTTON ON CHARTER PARTIES AND BILLS OF LADING pages 54 – 55 should be adopted: They read thus.
“…modern bills of lading contains a long list of excepted perils, exemptions from and qualifications of liability printed in type so minute as not only not to attract attention to any of the details, but to be only readable by persons of good eyesight. A question may therefore arise whether the bill of lading really represents the term of the contract to which the shipper agreed, as where it contains in small prints very unusual clauses. Thus, in crooks v. Allan, LUSH J. said, “If a ship owner wishes to introduces into his bill of fading so novel a clause as one exempting him from general average contribution…. He ought not only to make it clear in words, but also to make it conspicuous by inserting it in such type and in such part of the document that a person of ordinary capacity and care could not fail to see it….”
Respondent’s counsel finally urged the court to resolve the sole issue in respondents’ favour, affirm the judgment of the lower court and dismiss the appeal.
The appellant also filed a Reply Brief to challenge the submission of Respondents counsel.
I have carefully considered the arguments canvassed on both sides as well as the contents of the record of appeal transmitted to this court.
I find the issue formulated by the respondent concise and explicit enough to encompass all the issues relevant in this appeal. I shall therefore adopt same for this appeal.
The sole issue is WHETHER THE DECISION OF THE LEARNED TRIAL JUDGE WAS CORRECT GIVEN THE FACTS AS PROVED, EXHIBITS ADMITTED AND THE CIRCUMSTANCES OF THE CASE.
It is necessary at this juncture to review the facts of this case in resolving the sole issue for determination.
1) The plaintiff now the respondent is a company incorporated in Nigeria that engages in the business of importation of stockfish from Oslo Norway to Nigeria.
2) The defendants are sister Marine shipping companies incorporated in Nigeria.
3) On their own showing in paragraph 14(b) of the statement of Defence, the 2nd defendant was the disclosed agent of the carrier at the point of discharge (Onne).
4) The Plaintiff’s letter dated 14/6/2004 and 29/6/2004 to the defendants are deemed admitted by the defendants by virtue of their pleadings wherein averments in paragraph 8 of the plaintiffs amended statement of claim were left undenied.
Paragraph 8 of the plaintiffs amended statement of claim reads:
“8 The plaintiff aver that upon the above findings, promptly lodged complaints with the Defendants who ignored same. On 14/6/2004, the plaintiff wrote a letter to the defendants demanding to be indemnified for the losses. On 25/6/2004, the defendants responded requesting for a number of documents which were promptly sent vide the plaintiffs letter of 29/6/2004, but still refused to indemnify the plaintiff. The plaintiff pleads the said letters, and will call the evidence of Chris Amadi of Assurance Bank plc who inspected and confirmed the damages.”
5) The assertions of the plaintiff in paragraph 9 of the amended statement, of claim to the effect that the defendant commissioned their surveyors/Inspectors, the firm of MESSRS BSI INSPECTORATE to attend the plaintiffs warehouse as store 4 & 5 Eziukwu Market Aba to investigate the plaintiffs claims were also not denied by the defendants. For ease of reference I hereby quote paragraph 9 of the amended statement of claim as well as paragraph 9 of the statement of defence.
Paragraph 9 of the amended statement of claim reads:-
“9. The plaintiff aver that following persistent pressure form their Bankers for redemption of facilities granted the plaintiff through which the consignment was imported, and customers a party to plaintiffs business, appealed to the defendants for a change of heart. In consequence, about the month of July, 2004 the defendants commissioned their Surveyors/Inspectors, the firm of MESSRS BSI- INSPECTOMTE to attend the plaintiffs warehouse at store 4 & 5 EZIUKWU MARKFT, Aba to investigate and report on the plaintiffs claims. The plaintiffs aver that the surveyors duly investigated and confirm the plaintiffs claims. The defendants are hereby given Notice to produce originals of the report issued by their surveyors on 14/7/2004.”
Paragraph 9 of the statement of defence states:-
“9. The defendants admit the plaintiffs averments in paragraphs 9 and 10 of the statement of claim only to the extent that a survey was conducted in respect of the plaintiffs consignments at the plaintiffs warehouse on 12th July, 2004 and 2nd November 2004 respectively. In further response to the paragraph 9, the defendant admit that the firm of BSI Inspectorate was asked to conduct a survey of the plaintiff’s consignment but deny that the surveyor confirmed the plaintiff’s claims. The defendants shall rely on the survey report issued by BSI Inspectorate at the trial of this suit. The defendants deny every other averments in the said paragraphs.,,
6) As aforestated, the defendants in their own joint statement of defence admitted that 2nd defendant was a disclosed agent of the carrier at the point of discharge see paragraph 14(b) of the statement of defence. The two defendants did not deny jointly commissioning the firm of BSI Inspectorate as per their paragraph 9.
7) The 1st DW, John Bob Manuel, under cross-examination on page 336 – 337 of record admitted as follows:
“Q. Maersk Sea Line Maessik Nig. Ltd. And Safmarine are all the same.
A. safmarine is a sister company in the group Maersk Nig. Ltd was formerly called Maersk sea line.
a Q. This Maersk is a member of the group
A. Yes.”
The learned trial judge on page 375 therefore made the following finding.
“This container is one of the subject matter of this suit the D.W.1 described 2nd defendant a sister company in the AP Mono group and that the 1st defendant is a member of the group formerly know as Maersk Sealand new know as Maersk Nig. Ltd. D.W.1 identified exhibit Y, Y1 issued by Maersk Sealand in respect of the subject matter. D.W.1 also admitted that the Defendant commissioned the Inspectors to inspect the plaintiffs Bales of stockfish which had been unsafe. It is indisputable that the defendants actions and conduct fits into that of the role of an overseer of affairs of the principal. Both 1st defendant and 2nd defendant played different role in respect of the subject matter of this suit as Agents of their principal.”
Now, an appellate court will not interfere with the findings of fact made by the court below where there is sufficient evidence in support of such findings and where there is no substantial error apparent on the record. See WOLUCHEM V. GUDI (1981) 5 SC 291; BALOGUN v. AGBOOLA (1974) 10 SC. 111.I have carefully gone through the record of appeal and I am satisfied that there are enough facts to support the above finding of the learned trial judge.
I hold that the defendants were agents of the carrier and by virtue of section 16(3) of the Admiralty jurisdiction Act of 1991 are liable for the act default omission or commission, of the ship in respect of anything done or failed to be done in Nigeria. See M.V. CAROLINE MAERSK v. NOKOY INVEST. LTD (2002) 12 NWLR PT.782.
Was the damage to the goods a result of the act default omission or commission of the ship?
In answering this question recourse has to be had to the BSI Inspectorate report which are exhibits and which are not in dispute. I refer to the BSI Inspectorate report dated 10/11/2001 on container inspection and warehouse inspection which I quote hereunder:-
“Container Inspection :
We were at WACT empty Container stocking area on the 2nd November 2004 to inspect empty containers Number TCKU 915830-1. During the inspection we observed a concave spit of approximately 12cm on top the roof panel and the left side ventilated panel pulled off from its original base. There is possible ingress of water from both defects.
Further to out inspection we were at the consignee’s market store at Eziukwu Market on the 6th of November 2004 to inspect the 490 bales of stock fish. The bales were stored in 2 places, The first store was marked A12B SWDA ZONE 6 Block SF-27. While the second store was marked BIA SWDA ZONE 6 Block SF21.
During the exercise, we found that a total of 337 bales were observed to the dampen, stained and wet while 143 bales were noted sound.
Salvage Inspection:-
We salvaged the 337 dampen bares of stockfish and details is as follows:-
STORE A12B,
SWDA ZONE 6 BLOCK SF 27
REPORT NUMBER ABA/007/04
Sound Dampened/Wet Salvaged to be sound Remarks
143 220 bales 32 bales 188 bales of Stockfish
were of no market value. The assumed 32 bales can only be sold in retails
ZONE B1A
SWDA ZONE 6 BLOCK SF – 21
Sound Dampened/Wet Salvaged to be sound Remarks
117 bales 27 bales 90 bales were of nomarket value.
The assumed 27 bales that were sound can only be sold in retails.”
It need be noted that the bales of stockfish were tested according to the Inspection report issued on 9/7/04 by Intertek Testing Services and found to be of good quality. It is for the defendants to satisfy the court that the damage was not due to the shipper’s negligence and not otherwise. The burden of proof is on the carrier/shipper. see OGUGUA V. ARMELS TRANSPORT LTD (1974) 3SC 139, M. V. CAROLINE MAERSK v. NOKOY (supra) at 504.
I am satisfied that the defendants did not rebut the presumption that they as well as the carriers were liable for the damage to the goods hence I have no hesitation in holding that the learned trial judge was right by so holding.
It has been argued that the act, default omission or commission of the ship it respect of the damage was not proved to have been done in Nigeria. In this submission, the appellants seek to draw strength from the provision of section 16 (3) 0f the Admiralty jurisdiction Act of 1991, It reads thus:
“A person who acts as an agent of the owners, charterer manager or operator of a ship may be personally liable irrespective of the liability of his principal for the act default omission or commission of the ship in respect of anything done or failed to be done in Nigeria.”
Ayoola JSC in M. V. CARONLINE MAESK v. NOKOY INVESTMENT LTD (supra) at page 505 had this to say on this section.
“The liability of the agent in terms of section 16(3) is dependent on whether the act, default, omissions or commissions was (or were) in respect of anything done or to be done in Nigeria. That the act, default etc was in respect of anything done or to be done in Nigeria is an essential part of the cause of action and is a material fact that ought to be alleged and proved.”
The above statement of Ayoola JSC needs to be understood in the light of the facts of the case itself as summarized by His Lordship on page 502 of the report thus:
“The respondent (referred to in this judgment as “the plaintiff) a registered Nigerian Company carrying on business of exporting of sea foods, entered into an agreement with the Maersk Nigeria Ltd., the 3rd defendant, to ship 1,202 cartons of frozen Atlantic gold shrimps valued at US$71,516.50 in a vessel called Christian Maersk, owned by the and defendant from Lagos Port to Algeciras Port in Spain. The consignee of the shrimps was Tako Fish Corporation, Panama. The shrimps were of good consumable quality when they were shipped from Lagos, They were sealed in a container under acceptable temperature of 18oC/120oC.. The goods were carried under a bill of lading issued in Lagos. The Spanish Health Authority issued two reports on the condition of the shrimps. In the first, issued on 14th February, 1994, it was stated that the shrimps were “not suitable in the first inspection” due to abnormal odor, unsatisfactory appearance and high volatile vitrogen.” In the second, issued on 4th March, 1994, it was stated: “Not suitable (second inspection) due to abnormal odor, unsatisfactory appearance and melanoies.”
It was common ground that the shrimps became bad. What was in dispute was when the shrimps deteriorated. The plaintiff claimed that it was during the period of carriage by sea, while the defendants asserted that the shrimps deteriorated after their arrival in Spain and because by the nature of the shrimps they should have been collected within 2 days but were not collected more than 30 days after arrival. The trial Chief Judge, Belgore, CJ, preferred the plaintiff’s version and found that the cargo had arrived in good condition. After thus disposing of the main issue of fact essential to the liability of the carrier, the learned Chief Judge turned to questions of law which were essentially on the question of quantum of compensation, which he resolved in favour of the plaintiff. In the result, he entered judgment against the defendants for the rest of the claim after rejecting the 3rd and 4th heads of claim, He dismissed the defendants’ counterclaim for the cost of repatriation of the cargo back to Nigeria and return of the container to the defendants,
The defendant appealed to the court of Appeal which dismissed their appeal and confirmed the decision of the Federal High court. This appeal is from the decision of the Court of Appeal.”
There is no doubt that the facts are distinguishable from the facts of this case. The shipment, in this appeal, was from Norway to the Nigerian Port of Onne Sea Port. The point of discharge was in Nigeria. The default was in respect of the shipment which was to be discharged in Nigeria.
I am convinced that there are enough facts on the record to justify the liability of the appellant’s as found by the court below.
My attention has also been drawn to the case of HILARY FARMS LTD V. M/V/ MAHTRA (20-07) 14 NWLR PT, 1054 at 2L0, In HILARY FARMS LTD case, by the provision of the bill of lading the liability of the carrier for loss or damage to goods was to cease immediately the containers were discharged from the ship. It was not in dispute that all the containers were offloaded from the ship and were entrusted to the Nigeria Ports Authority who incidentally was not joined as a party. At what point did the loss or damage occur? Before discharge from the ship or in the custody of the new bailee, the Nigerian Port Authority? There was no evidence to resolve this. Hence it was held that it was the duty of the appellants to establish that the loss or damage was caused by the negligence of the respondents Juxtaposed with the facts of the case presently on appeal before me, it is very clear that the fact of the case of HILARY FARMS LTD are clearly distinguishable from the facts of this case now an appeal,
Now to argument on limitation of liability. It is true that by virtue of paragraph 20 of the statement of defence the defendants pleaded that they were entitled to limit their liability under the law. But the defendant did not go beyond this Pleading do not amount to evidence.
See AMBAMBI V.ADVANCE BEVEMGE IND. LTD (2005) 19 NWLR (PT.959) 1. An averment in the pleadings on which no evidence is called in is deemed abandoned. See YUSUF V. OYETUNDE (1998) 12 NWLR (Pt.579) 483.
Even where documents are pleaded and tendered in support of a fact, they ought to be demonstrated in open court to avert a situation whereby the court would retire into chambers to do private investigation. Documents admitted in evidence would not be of much assistance to the court in the absence of admissible oral evidence from persons who can explain their purport. See Alao v. AKANO (2005) 11 NWLR (Pt.935) 160. There was no evidence on which the trial court could act on the limitation of liability of the defendants.
No doubt, under Article (2)(1) Convention on Limitation Liability of Maritime claims 1976, and section 363 of Merchant shipping Act Cap 224 Laws of the Federation of Nigeria 1990 a carrier can limit his liability for the faults of its workers but there must be evidence to back it up and to explain in details the extent of the limitation as the court would not speculate on evidence not given in open court. I therefore agree with the respondent’s counsel’s submission that the appellants did not plead alternate facts to oppose the pleadings and evidence of the respondent at the lower court. I therefore see no reason to disturb the finding of the learned trial judge on this point. Did the respondent have locus standi to institute this action at the court below? ,
Learned senior counsel for the appellants relied heavily on the content of the bill of lading No. OSL Z02763 dated 21st July, 2004 which was admitted as Exhibit L. Exhibit L was tendered in proof the respondents claims for a second shipment from Norway to Nigeria. The respondent was described as the notify party in the said document.
Learned senior counsel relying on ADESANYA V. HOEGH & CO (1968) 1 ANLR 333; SEATMDE V, FIOGREJ LIMITED (1987-1990) 3 NSC 453 and PACERS MULTI DYNAMIC v. M. V. DANCING SISTER (2000) 3 NWLR PT. 648 page 241, submitted that the respondent being a notify party had no locus standi to institute the action. He further submitted that there was no endorsement for valuable consideration by Assurance Bank (who was named as consignee) to either Zats International Ltd. Or to the clearing agent Libac Nigeria.
To agree with the submission of learned senior counsel is to close one’s eyes to the strong unchallenged evidence adduced by the PW2, the clearing agent, and director of Libac Nig, Ltd which I quote hereunder:
“Q. What did you do before going to clear.
A. What happened is that Zats is my client for roughly 6 years any time he has a consignment he will call me and notify me. He is based in Norway. He will give me a letter to Assurance Bank to release the original document on the stockfish to me on the plaintiffs behalf.
Q. When you collect what did you do.
A. When I collect the document from Assurance bank I will go to Maersk Shipping company to know the actual time container is coming, then I will go prepare the document to know the actual duty to pay Federal Government of Nigeria after-getting the figure. I will go to National Agency for food and Drug (NAFDAC) to pay NAFDAC fees. Then after that I move to custom to process after processing they will take deliver. You cannot carry container without paying Maersk their charges. They issue a debit then you pay.
Q. Do you remember those shipping document you collect.
A. Yes.
Q. Please tell court
A. First document is import duty certificate, Invoices and packing list and Form M. Copy and Original Bill of Lading and Sanitary Certificate.
Q. What does WATS represent.
A. Before you conduct inspection you will have a debit from WATS inside wharf and after you pay them they will drop the container for inspection for NAFDAC and Custom.
Q. Take a look at these documents.
A. These are the document. They photocopies
Q. What happened to Original.
A. The document exchange document has 7 copies what is in court is the copy I use to return the original to my client. They will then return it to Assurance Bank I will keep them. So original is with Assurance Bank.
Plaintiff Counsel: I seek to tender the document.
Defence Counsel: I object to the condition under which party can tender has not been met.
Witness said originals are with Assurance Bank. He has not expressed difficulty of getting them. This is not basis for tendering same. We urge to reject the document.
Plaintiff counsel: I withdraw the document and will re-tender.
Defence Counsel: I have no objection to withdrawing this document.
Q. Where are the originals.
A. They are with Assurance Bank is not existing, I do not see Assurance Bank again where they used to exist.”
The witness evidence quoted above was not challenged under cross examination which went thus:-
“Cross Examination:
Q. Tell court exact date you cleared the first consignment.
A. I cannot remember.
Q. Do you know the number of days between when consignment arrived and you cleared.
A. I cannot remember,
Re Examination: None,”
It is clear that the intention of the parties was that the Respondent should be the consignee and not the notify party and this is crucial in the interpretation of the bill of lading. See BRAWAL SHIPPING NIG. LTD 11 NWLR (PT.678) 387 at 410 to 411.
I therefore hold the respondent, from the evidence on record was a consignee and not a notify party.
In the final analysis I am of the respectful view that the decision of R. O. Nwodo J (as she then was) is unimpeachable.
There is sufficient evidence on record to justify the decision.
I resolve the sole issue adopted for this appeal in favour of the Respondent.
This appeal fails in its entirety.
It is accordingly dismissed with cost assessed as N60,000 in favour of the respondent.
M. DATTTJO MUHAMMAD, J.C.A.: I agree.
P. A. GALINJE J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, AWOTOYE, JCA and I entirely agree with the reasoning contained therein and the conclusion arrived thereat. Evidence adduced at the lower court has clearly shown that the damage to the stock fish occurred while the consignment was with the Appellants. It is also plain from the evidence available that the Respondent by necessary intendment was a consignee and not a notify party, as such he had locus standi and/or entitle to sue in respect of the consignment of stock fish covered by bill of lading No.OSLZO2763 dated 21st July, 2004.
For the Appellants to succeed, they must show that the damages to the stock fish was not occasioned as a result of their negligence. This they failed to do. The lower court was therefore right in its decision. See OGUGUA V ARMELS TRANSPORT LTD (1974) 3 SC 139, M.V. CAROLINE MAERSK V. NOKOY INVESTMENT LTD. (2002) 12 NWLR, (PT.782).
For this reason and the more elaborate reasons contained in the lead judgment, I join my brother; AWOTOYE, J.C.A. in dismissing this appeal. I abide by the order on cost.
Appearances
Babajide Koku SAN with A. E. NwaekeFor Appellant
AND
F. U. Okoro Esq.For Respondent
