MEDITERRANEAN SHIPPING CO. S.A. & ANOR V. MR. ALEXANDER ENEMAKU & ANOR (2012)

MEDITERRANEAN SHIPPING CO. S.A. & ANOR V. MR. ALEXANDER ENEMAKU & ANOR

(2012)LCN/5122(CA)

In The Court of Appeal of Nigeria

On Monday, the 30th day of January, 2012

CA/L/862/2008

RATIO

THE POSITION OF THE LAW ON BILL OF LADING

LAW OF CONTRACT: THE DOCTRINE OF PRIVITY OF CONTRACT

I agree with learned Appellants’ counsel that contract only bind parties to it. In UBA V. JARGABA (2007) Vol. 43 WRN1 @ 19, Muhammad JS held as follows: “The doctrine of privity of contract in all about the sanctity of contract between the parties to it. It does not extend to others outside. The doctrine will not apply to a non-party to the contract, who may have unwittingly, been dragged into the contract with a view to becoming a shield or scapegoat against the non-performance by one of the parties…” See also OGUNDARE & ANOR V. OGUNLOWO & ORS (1997); BMI V. WOERMANN LINE (2009) Supra. PER. HELEN MORONKEJI OGUNWUMIJU, J.C.A

THE TEST OF LIABILITY

DAMAGES: ON THE MEANING OF GENERAL DAMAGES

On this issue, the law is that general damages relate to all the items of loss which the plaintiff is not required to specify in his pleadings in order to permit proof and recovery in respect of them at the trial. Special damages relate to all items of loss which must be specified by the Plaintiff before they may be proved and recovery granted. See PROF. AJIBAYO AKINKUGBE V. EWULUM HOLDINGS NIGERIA LTD. (2008) 4 SCNJ 404; IYERE V. BENDEL FEED & FLOUR MILLS LTD (2008) 12 SCNJ 412. PER. HELEN MORONKEJI OGUNWUMIJU, J.C.A

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

MUHAMMED DANJUMA Justice of The Court of Appeal of Nigeria

Between

1. MEDITERRANEAN SHIPPING CO. S.A.
(Owners of the Vessel ?MSC LARA?)
2. THE VESSEL “MSC LARA” Appellant(s)

AND

1. MR. ALEXANDER ENEMAKU
2. COMET SHIPPING AGENCIES NIG LTD. Respondent(s)

HELEN MORONKEJI OGUNWUMIJU, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Honourable Justice M. L. Shuaibu sitting at the Federal High Court, Lagos judicial, division delivered on the 24th day of April, 2008.
The facts that led to this appeal are as follows:
The plaintiff now the 1st Respondent was posted to the Nigerian High Commission in Australia where he served for 5 years before he was posted to Abuja in 2003. As a result of his posting, he had to convey all his personal property acquired abroad to Nigeria. He employed the services of Forwarding Agents, Megatop Cargo Pty Limited and Australian Freight Forwarders International Pty Limited to help convey the property by sea to Nigeria. The Plaintiff claimed that the Appellant and the agents agreed to convey the goods to Nigeria for a sum of 3,700 Australian dollars via the vessel MSC ‘Lara’ and he was subsequently issued a Bill of Lading. It was agreed that the goods would be delivered within 3 months from the day of shipment. The property was however not delivered on the agreed date. All enquiries as to the whereabouts of the goods failed, and the 1st Respondent brought an action at the Federal High court Lagos on February 24, 2005 claiming jointly and severally against five Defendants as follows:
1. The sum of United states Dollars US$ 120,000 being the value of the goods undelivered to the Plaintiff:
2. The sum of Australian Dollars AUD3770 being the freight and other charges paid on the goods by the Plaintiff;
3. Damages for the pain and suffering occasioned the Plaintiff following the non-delivery of the Plaintiff’s goods.
The 1st Respondent’s claim was originally against 5 Defendants namely:
1. Mediterranean Shipping Co. S.A. (owners of the vessel MSC ‘Lara’)
2. The vessel MSC ‘Lara’
3. Comet Shipping Agencies Nigeria Limited
4. Megatop Cargo Pty Limited and
5. Australian Freight Forwarders Intl Pty Ltd.
He later filed a notice of discontinuance as against the 4th and 5th Defendants and their names were accordingly struck out. Again the 1st Respondent filed another motion to join or restore the name of the 4th Defendant as a party to the suit and his prayer was granted.
Issues were joined by the remaining parties and after a full trial, the trial court entered judgment in favour of the 1st Respondent in the sum of US$120,000 and AUD 3,770 jointly and severally against the 1st-4th Defendants. The 1st and 2nd Defendants now Appellants being dissatisfied with the judgment brought this appeal.
The Appellants’ brief, dated 15th of June 2010 was filed on the same day. Appellants’ Reply brief dated 6th day of July was also fifed the same day. 1st Respondent’s brief was dated 22nd of June 2010 and filed the same day.
Appellants’ counsel, Ayo Olorunfemi ESQ identified six (6) issues for determination as follows:
1. Was the learned trial judge right to have held the Appellants bound by the contents of the Bill of Lading (Exhibit C1) and/or that they breached same when the said Bill of Lading was not issued or authorized by them and is not an owner’s bill?
2. Whether the mere facts of Defendant witness 1 (DW1) and/or his co-staff tracing and tracking of the vessel, “MSC LARA” and the container are conclusive proofs that the Appellants are parties to the Bill of lading contract (Exhibit C1).
3. Whether from the available evidence, the trial court was right in its, conclusion that the Appellants accepted to carry the Plaintiff/Respondent’s cargo on board their vessel?
4. Was the learned trial judge right to have awarded special damages in the sum of US$120,000 and/or Australian Dollars 3,770 particularly as against the Appellants for an alleged breach of the terms of the Bill of lading (Exhibit C1) to which the Appellants were not parties and when the Plaintiff/Respondent failed to establish by credible evidence the said claim for damages?
5. Was the learned trial judge right to have relied on an unsigned document (Exhibit D) which was also shown to have been prepared when proceedings were anticipated and therefore clearly inadmissible and/or reliable?
6. Whether from the totality of the available evidence, the learned trial judge was right to have entered judgment as claimed against the Appellants?
On the other hand, 1st Respondent’s counsel, Sylva Ogwemoh distilled three (3) issues for determination as follows:
1. Was the Learned Trial Judge right in holding the Appellants liable in the circumstances of this case for the non-delivery of the 1st Respondent’s goods of personal effects in Nigeria under the relevant Bill of Lading, Exhibit ‘C’?
2. Were the Appellants under a duty as carriers to deliver the 1st Respondent’s goods to Lagos, Nigeria, being the named port of discharge under the relevant Bill of Lading, Exhibit ‘C’?
3. Is the 1st Respondent entitled to be compensated by the Appellants for the non-delivery of his goods in Lagos, Nigeria, as agreed?
I will adopt the Respondent’s issues which speak more particularly to the questions at stake. However, I will recouch the issues to bring to the fore relevant questions in controversy between the parties.
1. Whether the learned trial judge was right in holding the Appellants liable for non-delivery of the 1st Respondent’s goods under the bill of lading – Exhibit C1.
2. Whether the Appellants had agreed to carry the 1st Respondent’s goods and as such under the duty as carriers to deliver the 1st Respondent’s goods to Lagos, Nigeria.
3. Whether the learned trial court was right in awarding special damages in the sum of US$120,000 and AUD3, 770 against the Appellants.
It should be noted that the Appellants in their Reply brief submitted that the 3 issues formulated by the 1st Respondent are not covered by any of the 6 grounds of appeal filed. Counsel submitted that it is trite law that where an issue formulated for determination is not predicated upon any ground of appeal; it is incompetent and liable to be struck out. He argued that the 1st Respondent’s issues as formulated should therefore be discountenanced and the appeal should therefore be deemed as having been conceded and should be allowed accordingly. My own humble view is that Respondent’s counsel had a right to formulate issues for determination different from the Appellant’s as long as they can properly be distilled from the grounds of appeal. The Appellants did not state specifically how they arrived at the conclusion that the 1st Respondent’s issues did not emanate from the grounds of appeal. In this case, the Respondents’ issues are clearly based on the grounds of appeal. It is immaterial whether the Respondent did not marry them to the grounds of appeal in the brief or indicate specifically the grounds from which they were derived. Suffice it to say that the complaints against the Respondent’s issues are completely misconceived.
ISSUE ONE
This issue is covered by Appellants’ issues 1, 2 & 6 and 1st Respondent’s first issue. Learned Appellants’ counsel contended that the trial judge was wrong in holding the Appellants bound by the contents of the Bill of Lading (Exhibit C1) and consequently liable for non-delivery of the 1st Respondent’s goods, since the Appellants were not a party to the said bill of lading.
Counsel submitted that it is trite that a bill of fading is a contract between the Carrier and the Consignee with reference to the goods mentioned therein. He referred to the definition of a Carrier in Article 1 of the Hague Rules 1924 as the owner or charterer who enters into a contract of carriage with a shipper and submitted that there is no scintilla of evidence to show that the Appellants had entered into a contract of carriage with the 1st Respondent. He cited KAYCEE (NIG) LTD. V. PROMPT SHIPPING CORP (1998) pt. 1 NSCC vol. 17 Pg. 152; OSHEVIRE V. BRITISH CALEDONIAN AIRWAYS LTD (1990) 7 NWLR pt. 163 Pg. 489; UAC NIG. LTD V. GLOBAL TRANSPORTE OCEANIC S.A (1996) 5 NWLR Pt. 448 Pg.291 @ 300.
Counsel argued that the onus was on the 1st Respondent to prove that he had a contract with the Appellants in accordance with Section 135(1) of the Evidence Act and the 1st Respondent failed to discharge this burden. He cited CONTRACT RESOURCES (NIG) LTD V. WENDE (1998) 5 NWLR Pt. 549 P9.243 @ 260-262; OBAYAN V. UNILORIN (2005) NWLR Pt.947 Pg. 123 @ 140. Counsel insisted that the facts and evidence before the trial court were not enough to ground the trial court’s decision that the Appellants were liable to the 1st Respondent. He claimed that the basis of the 1st respondent’s claim at the trial court was a Bill of Lading – Exhibit C1. Counsel argued that the Bill of Lading was neither issued nor authorized by the 1st Appellant, but was issued by Megatop Cargo Pty Ltd. the 4th Defendant. He argued that the mere fact that the 4th Defendant chose to insert the name of 1st Appellant’s vessel MSC ‘Lara’ (2nd Appellant) and its container number is no proof that it had done so under “the authority of the 1st Appellant. He submitted that by virtue of Section 154 of the Evidence Act and section 375 of the Merchant Shipping Act, the bill of lading (Exhibit C1) can only be conclusive proof of shipment as against Megatop Ltd. the party who signed it and not the Appellants.
Counsel also referred this court to the testimony of PW1 at pages 108-110 of the record and contended that nothing in his evidence showed that the 1st Respondent handed over his goods to the Appellants or entered into any contract of carriage with the 1st Appellant whether directly or through its authorized agents. He pointed out inconsistencies in the testimony of PW1 in paragraph 3.24 of the Appellants’ brief. He claimed PW1 had at first on page 108 of the record alleged that he gave his goods to his shipping agent, Australian Freight Forwarders Ltd, who came to his house with cartons to pack the goods and thereafter issued an invoice for AUD3, 770 and that on pages 122 & 123, PW1 had contradicted himself by stating that the 1st Appellant was the one that came with a Van to pack the goods.
He claimed that in accordance with the provisions of Articles 3 Rules 3 and 4 of the Hague Rules, if the 1st Respondent had actually given the goods in question to the Appellants for shipment as alleged, then the Appellants would have issued a bill of lading signed by the Master of the vessel acknowledging the receipt of the goods on board the vessel.
Counsel submitted that the mere fact that DW1 and/or his co-staff traced and tracked the vessel MSC ‘Lara’ and the container number inserted on the bill of lading is not conclusive proof that the Appellants are parties to the bill or that they accepted liability. He claimed that DW1 as a local agent was only trying to ascertain the claim submitted to him.
Counsel insisted that contracts only bind parties to it and as such, since the Appellants were not a party to the bill of lading issued to the 1st Respondent, they cannot be held bound by it. He cited OLATUNDE V. OAU (1998) 5 NWLR Pt. 549 Pg. 178@191; PNEUMATIC TYRE CO. V. SELFRIDGE CO. LTD (1915) AC 847; BRAWAL SHIPPING (NIG) LTD & ANOR V. F. I. ONWADIKE & Co. LTD (1996) 1 NWLR pt.422 pg.65 @ 80. Counsel then urged this court to resolve the issue in favour of the Appellants.
On the other hand, 1st Respondent’s counsel submitted that the mere fact that the bill of lading was not issued in the name of the Appellants did not exonerate the Appellants from liability. Counsel claimed that from the evidence adduced by the 1st Respondent at the lower court, it is clear that the Appellants were involved in the carriage of the 1st Respondent’s goods. He further claimed that quite contrary to what the Appellants had claimed, the bill of lading (Exhibit C1) was actually signed at the bottom for and on behalf of the Appellants as the carriers of the goods. He cited the case of TILMANS V. KNUTSFORD (1908) AC 406 where a ship-owner was held bound by the contract of carriage contained in a bill of lading signed on behalf of the ship-owner.
Counsel argued that the averments in the 1st Respondent’s statement of claim particularly in paragraphs 2-4; 9 and 15 were not specifically denied by the Appellants in their statement of defence at the trial court, but instead the Appellants had generally denied the averments. Counsel submitted that it is trite that averments in a statement of claim must be specifically denied, otherwise the Defendant will be taken to have admitted such averments and that a general or evasive traverse in a statement of defence should be regarded as an admission of the facts or allegation in the statement of claim to which it relates or it may be treated as placing no burden of proof on the plaintiff unless other paragraphs in the statement of defence contain a denial of the plaintiff’s averment. He cited ATOLAGBE V. SHORUN (1985) 1 NWLR Pt. 2 pg.350; BUA V. DAUDA (2003) 13 NWLR pt. 838 pg.657; OGBEIDE V. OSULA (2004) 12 NWLR Pt. 886 Pg. 85 @ 131.
Counsel further added that no consequential amendment was made by the Appellants to their statement of defence after the 1st Respondent had amended his own pleadings on March 6, 2006 and as such, the Appellants must be taken to have admitted to the new facts inserted in the amended statement of claim.
Counsel submitted that the testimony of the Appellant’s witness (DW1) at the trial court specifically on lines 7 -14 on page 135; lines 13-22 on page 136 and lines 1-8 on page 137 of the record shows that the Appellants were indeed carriers of the 1st Respondent’s goods and that the trial court was right to have held so.
As regards whether the trial court was right in holding the Appellants liable, counsel submitted that it is a well settled law that a bill of lading is not in itself the contract between the ship owner and the shipper of goods, but the excellent evidence of its terms. He submitted that as such, bills of lading do not always clearly identify the party who contracts to carry and deliver the goods especially where the bills are issued to shippers of goods that are loaded on a chartered ship. He explained that a bill of lading on a charterer ship may show a contract with either the ship owner or the charterer or both, depending on the agreement between the ship owner and the charterer and the nature of the charter. He claimed that it is only where the charter is by demise that the charterer assumes possession of the ship and ultimately becomes responsible for the goods on the ship. However in any other form of charter, possession of the vessel and goods on it is still in the owner; as such the charterer would in all respects be the servant of the owner and all bills of lading signed by the charterer would bind the owner of the vessel. He cited ALLIED TRADING COMPANY LTD V. GBN LINE (1980-1986) 2 NSC Vol. 2 pg. 348; ARDENNES (CARGO OWNERS) V. ARDENNES (OWNERS) (1951) 1 K.B. 55.
Counsel then submitted that the charter involved in this case could not have been by demise because there was evidence to show that only a space in the vessel was used by the 1st Respondent for the shipment of the goods and that the Appellants remained at all relevant times in possession of the vessel MDC ‘Lara’ that was used to ship the 1st Respondent’s goods. Counsel also claimed that the Appellants should have given evidence to show that the charter was by demise and the fact that they didn’t give such evidence proves that the evidence if it exists would not be favourable to the Appellants. He referred to section 149(d) of the Evidence Act and cited NWOGA v. BENJAMIN (2009) 5 NWLR pt. 1133 pg. 152 @ 178.
Counsel contended that section 375 of the Merchants Shipping Act LFN 1990, cited by the Appellants in their brief does not apply as the Act has been repealed by section 439 of the Merchant Shipping Act 2007.
Counsel also submitted that the attitude of the courts in other jurisdictions where a contract of carriage involves two sets of carriers is to hold both carriers jointly and severally liable and that by the provision of section 154 of the Evidence Act and the arguments canvassed above, the trial court was right in holding the Appellants liable for breach of contract.
Counsel concluded that the agreement between the parties was that the goods would be delivered by MSC ‘Lara’ from Sydney, Australia to Lagos, Nigeria, but that in the course of the tracing and tracking carried out by the Appellant’s agents and evidenced by Exhibit F, it was shown that the 1st respondent’s goods were transferred from the original vessel to another vessel NSC Rhone. Counsel contended that as a result of this apparent breach, the Appellants should not be allowed to rely on any clause in the bill of lading limiting or excepting liability for loss of goods. He cited SHIPPING LAW, a book by SIMON BAUGHEN (2nd Ed.) Pages 95 & 96; THORLEY V. ORCHIS (1907) 1 KB 660; JAMES MORRISON & CO. LTD. V. SHAW, SAVILI & ALBION CO. LTD (1915) 2 KB 783.
Counsel to the Appellants in a Reply brief contended that the Appellants had in fact specifically averred in paragraphs 3, 4, 5, 6 and 7 of their statement of defence that they had no contract with the 1st Respondent, did not issue the purported bill of lading and did not authorize any person to issue it. Counsel argued that these are enough denials of the case put forward by the 1st Respondent at the trial court.
Appellants’ counsel also argued in the reply brief that the 1st Respondent’s arguments in paragraph 4.7-4.9 were off tangent as the question of whether there was a charter party by demise or not, never arose at the trial court. He claimed that there was no evidence that the bill of lading was signed by the master of the vessel.
Let me first consider the issue raised by the 1st Respondent’s counsel as regards general and evasive traverse. Counsel had argued that the averments in the 1st Respondent’s statement of claim were not specifically denied by the Appellants in their statement of defence at the trial court, but instead the Appellants had generally denied the averments. I agree with the learned counsel that it is trite that a general traverse is evasive and as such amounts to implied admission and should be treated as placing no burden of proof on the plaintiff unless other paragraphs in the statement of defence contain a denial of the Plaintiff’s averments. A Plaintiff’s averments must be met by the Defendant frontally and specifically and on failure to do this, the Defendant is taken to have admitted such averments. See MERIDIEN TRADE CORPORATION LTD V. METAL CONSTRUCTION (W.A.) LIMITED (1998) NWLR pt. 544) 1 SC 20; OGBEIDE V. OSULA (2004) 12 NWLR (pt. 885) 85 @ 131-132 CA.However, it seems to me that the learned counsel was being economical with the truth. A perusal of the Appellants’ statement of defence at the trial court on pages 28-29 of the record reveals that apart from the general traverse in paragraphs 1 & 2, the Appellants had proceeded to deny categorically the allegations contained in the 1st Respondent’s statement of claim in paragraphs 3-9 of the statement of defence. Therefore, the 1st Respondent’s argument in this regard is of no moment.
As regards whether the Appellants can be held liable under the Bill of Lading – Exhibit C1 issued by the 4th Defendant at the trial court, Megatop, there are several factors to be considered. Let us look at the various definitions and the rights and obligations of all concerned. The principal party in this transaction is a carrier. Who then is a carrier? In Article L of the International Convention for the Unification of Certain Rules of Law Relating to Bills of Lading (Hague Rules) 2004, a Carrier was defined as follows:
“A carrier includes the owner or the charterer who enters into a contract of carriage with a shipper.”
It is apparent from this definition of a carrier that who a carrier is in a particular case should be determined by the circumstances of that case.I have had a careful look at Exhibit C1; there is no doubt that ‘MSC Lara/02, Container No. MSC112388308, Seal No. 1752306 written on it, is not conclusive proof that the forwarding agent, Megatop indeed put the goods on the ship. This is because as far as we can tell, it is the charterer (the shipping Agent-Megatop) who entered into a shipping contract with the shipper.
However, let us consider the rules of admiralty. Bills of Lading have been held severally not to be a contract of carriage but an evidence of that contract. In Sonnar (Nig) Ltd & Anor v. Pertenreederi M.S. Nordwind (1985) NWLR (Pt. 11) Pg. 135 CA, it was held Per Oputa JSC as follows:
“It is trite law that in shipping matters, the Bill of Lading evidences a contract between the ship-owner and the shipper or consignee of cargo.’
Also in Captain Michael Chacharos v. Ekimpex Limited (1988) 1 NWLR (Pt. 68) 88 SC, it was held that a bill of lading is a receipt for goods stating the terms on which they were to be delivered to and received by the shipper. It provides excellent evidence of those terms but it is not a contract.

In B.M. Ltd v. Woermann-Line, a Bill of Lading was defined as follows:
“A bill of lading is a writing signed on behalf of the owner of the ship in which goods are embarked, acknowledging the receipt of the goods, and undertaking to deliver them at the end of the voyage subject to such conditions as may be mentioned in the bill of lading.”
Lord Goddard in Ardennes (Cargo Owners) V. Ardennes (Owners) (1951) 1 K.B. 55 also stated:
“I therefore have now to consider the defence which arises out of the terms of the Bill of Lading… It is, I think, well settled that a Bill of Lading is not in itself the contract between the ship-owner and the shipper of goods, though it has been said to be excellent evidence of its terms… The contract has come into existence before the Bill of Lading is signed; the latter is signed by one party only, and handed by him to the shipper usually after the goods have been put on board. No doubt if the shipper finds that the bill contains terms with which he is not content, or does not contain some term for which he has stipulated, he might, if there were time, demand his goods back; but he is not, in my opinion, for that reason, prevented from giving evidence that there was in fact a contract entered into before the Bill of lading was signed different from that which is found in the Bill of is admissible…”
Thus, there is a difference between the oral contract between the shipper of goods and the carrier/owner or charterer. There is no doubt that the Bill of Lading in this case shows that the 1st Respondent had an oral contract with the charterer who gave him a receipt for the goods indicating that the goods had been placed on MSC LARA/02.
Now, let us consider whether the Appellants can be held liable under a bill of lading not signed by them. Having regards to the definition in B.M. Line’s case supra, a bill of lading is actually a document signed on behalf of the ship owner. It seems to me then that whether or not the name of the ship owner was disclosed on the face of the bill, it is indeed implied that the bill is signed at all material times on behalf of the owner of the vessel in which the goods are transported.
This issue is resolved against the Appellant.
ISSUE 2
This issue is covered by Appellant’s issue 3 and partly in 1st Respondent’s issue 1 as well as issue 2. Counsel to the Appellants adopted his arguments in respect of issue one and stated that even though the court had stated correctly that it is settled law that where parties enter into a contract, they are expected to honour its terms, it had nevertheless reached a wrong conclusion by holding that the Appellants were parties to the contract evidenced by the bill of lading – Exhibit C. He urged the court to hold that the Appellants not being parties to the bill of lading did not agree to carry the 1st Respondent’s goods.
In response, counsel to the 1st Respondent that the Appellants were indeed the carriers of the 1st Respondent’s goods and are such were under a duty to deliver the goods safely to the agreed port and that failure to do this amounted to a breach of this duty by the Appellants for which they were held rightly liable. He cited the decision of the Ninth Circuit Court of Appeals in United States of America in the case of MAZDA MOTORS INC. & INDEMNITY INSURANCE CO. OF NORTH AMERICA V. M/V COUGAR (F. 3d) (8th circuit, 2009) where it was held that when cargo has been stowed on board a vessel and bills of lading issued, the bills become binding contracts on the vessel in rem upon he sailing of the vessel with the cargo. He submitted that the fact that the 1st Respondent’s goods were on board MSC ‘Lara’ when it sailed from Sydney Port constitutes a ratification of the terms of the bill of lading and proves that the Appellant had indeed agreed to carry the goods.
Counsel submitted that the Appellants, as carriers for a reward, owe the 1st Respondent a duty to ensure that his goods are delivered to him in Lagos. He insisted that since the Appellants’ statement of defence contained only a general denial of the averments in the 1st Respondent’s statement of claim, it must be deemed that they have admitted the facts stated therein particularly with reference to paragraphs 8, 9 & 15 of the statement of claim on pages 52-53 of the record. He also stated that the testimony of PW1; the 1st Respondent that he paid AUD 3, 770 to the 1st Appellant through the 4th Defendant and that the Appellants were negligent for” not delivering the goods as agreed, was also not denied or contradicted by the Appellants at the trial court and as such should be deemed proved.
Counsel insisted that due to the Appellants’ negligence, they were jointly and severally liable in addition to the other defendants at the trial court for the non-delivery and/or loss of the 1st Respondent’s goods and that the 1st Appellant cannot escape liability on the ‘flimsy’ excuse that the bill of lading was not issued by it personally. He cited section 151 of the Evidence Act; ABALOGU V. SPDC LTD. (2003) 13 NWLR Pt. 837 Pg. 308 @ 334 – 335; UGHUTEVBE V. SHONOWO (2004) 16 NWLR Pt.899 Pg. 300 @ 332-333.
I agree with learned Appellants’ counsel that contract only bind parties to it. In UBA V. JARGABA (2007) Vol. 43 WRN1 @ 19, Muhammad JS held as follows:
“The doctrine of privity of contract in all about the sanctity of contract between the parties to it. It does not extend to others outside. The doctrine will not apply to a non-party to the contract, who may have unwittingly, been dragged into the contract with a view to becoming a shield or scapegoat against the non-performance by one of the parties…”
See also OGUNDARE & ANOR V. OGUNLOWO & ORS (1997); BMI V. WOERMANN LINE (2009) Supra.Having determined this, the only thing left to consider is whether the 1st Respondent’s goods in the container evidenced by the bill of lading – Exhibit C1 was actually loaded on board the vessel MSC ‘Lara’ belonging to the 1st Appellant. The tracing and tracking evidenced by Exhibit F carried out by the Appellants’ staff clearly reveals that at some point in time, the 1st Respondent’s goods were on board a vessel belonging to the Appellants called MSC Rhone 6A from Las Palmas, it was discharged at Buenos Aires and later loaded on board the same ship before the trail was lost.
I find it difficult to understand how the Appellants can claim outright that they were never involved in the carriage of the 1st Respondent’s goods and that there was never a contract, either express or implied between the parties. In my humble view, once a ship owner has admitted goods belonging to a shipper onto its vessel, he cannot be allowed nay, he is estopped from denying the fact that there was a contract between it and the shipper. The practice and law of admiralty will not allow this. It is thus irrelevant whether the bill of fading was issued by the ship-owner itself or by a charterer, as long as the goods were accepted on board the vessel and properly evidenced by a bill of lading, the ship owner becomes responsible for the safe and timely delivery of the goods.
I also agree as earlier said that on the face of this bill, what is apparent is that the party who entered into a contract of carriage with the 1st Respondent was Megatop. I however agree with the reasoning in the decision of the Ninth circuit court of Appeals in United States of America in the case of MAZDA MOTORS INC. & INDEMNITY INSURANCE CO. OF NORTH AMERICA V. M/V COUGAR (F. 3d) (8th circuit, 2009) that when a cargo has been loaded on board a vessel and bills of lading issued, the bills become binding contracts on the vessel in rem upon the sailing of the vessel with the cargo and I add that it is irrelevant who signed the bill of lading at all. As long as the ship owner, the Appellants cannot in good faith deny that the 1st Respondent’s goods were at some point on their vessels, they cannot also be allowed to deny liability in respect of those goods. There can be implied from the fact that the goods were loaded on the Appellant’s vessel, a willingness to enter into a contract of carriage of goods.

On liability of a carrier, it was held in Allied Trading Company Ltd. V. Gbn Line (1980-1986) 2 Nsc Vol. 2 348 @ 352 – 353, Oputa JSC stated as follows:
“The test of liability seems to be if there is evidence that the ship owner has so divested himself of the vessel and of its use and benefit so that it is in the possession and power of someone else then that someone (or his servant and agent) will be liable and not the ship-owner.”
Also, in The M.V. Caroline Maersk v. Nokoy Investment Limited (2002) 12 NWLR (Pt.782) 472 SC, it was held thus:
“It is the first rule of marine cargo claim that the carrier is prima facie liable for loss or damage to cargo received in good order and out-turned short of in bad order. The carrier having received the goods in order under a clean bill of lading and having received bad order receipts on delivery is prima facie liable for the loss or damage.”
There is no doubt that in this case, the charterer only chartered the container space in the ship and not the whore ship. Therefore all the goods on the ship are still the responsibility of the carrier and the carrier is liable for any loss.
In the circumstances, I hold the Appellant liable for the loss to the 1st Respondent goods shipped from Australia. The 2nd issue is resolved against the Appellant.
ISSUE THREE
This is addressed in Appellant’s issues 4 & 5 and 1st Respondent’s third issue. On this issue, learned Appellants’ counsel once again adopted his arguments in respect of issues one and two and submitted that the trial court was wrong in awarding special damages in the sum of US$120, 000 and AUD3, 770 against the Appellants because they were not privy to the relevant bill of lading – Exhibit C1.
Counsel also claimed that the 1st Respondent failed to prove the particulars of the special damaged he claim and that he failed to show how he arrived at a lump sum figure of US$120,000. He submitted that it is trite law that special damages must state with particularity the claims, so that the Defendant would know, not only what the amount of loss or damage which the plaintiff alleged he suffered is, but also how such amount is made up or calculated. He cited NGILARI V. MOTHERCAT LTD. (1999) 13 NWLR Pt. 636 Pg. 626 @ 648; SOMMER V. FHA (1992) 1 NWLR Pt. 219 Pg. 548; HAWAY V. MEDIOWA NIG. LTD. (2000) 13 NWLR PT. 683 PG. 77.
Counsel further contended that the list of all the items (personal property of the 1st Respondent) in the consignment – Exhibit D was unsigned and was prepared by the 1st Respondent when proceedings where anticipated contrary to the provisions of section 91 (3) & (4) of the Evidence Act. He submitted that as such the exhibit was inadmissible, worthless and unreliable and that it was wrong for the learned trial judge to have placed reliance on it as a basis for awarding special damages against the Appellants. He cited NITEL V. ROCKONOH PROPERTY CO. LTD & ANOR (1992) 2 NWLR PT. 378 PG. 473; NWANGWA V. UBANI (1997) 10 NWLR Pt. 526 Pg. 559; FASEHUN V. AG. FEDERATION (2006) 6 NWLR PT. 975 PG. 141 @ 157; AG ABIA STATE V. AGHARANYA (1999) 6 NWLR PT. NWLR PT. 607 PG. 362.
Counsel submitted that an Appellate court is under a duty to interfere with and reverse the decision of a trial court which was arrived at upon a premise that is not right in law or otherwise perverse and that the decision of the learned trial judge ignored the facts and evidence before him and as such clearly amounts to miscarriage of justice and should be set aside. He cited MBA V. AGU (1999) 12 NWLR PT. 629 PG. 1 @ 14; ADEGOKE V. ADIBI (1992) 5 NWLR Pt. 242 Pg. 410 SC; AGBOMEJI V. BAKARE (1998) 9NWLR Pt. 564 Pg. 1 SC @ 8; ODIBA V. AZEGE (1998) 9 NWLR Pt. 556 Pg.370 @ 380 SC.
In reply, 1st Respondent’s counsel argued that the 1st Respondent was entitled to be paid adequate compensation for the loss of his property acquired over a period of several years by the Appellants. He contended that the 1st Respondent, at the trial court had provided a comprehensive list of the items lost – Exhibit D. He claimed that Exhibit E was a receipt; the only receipt the 1st Respondent could tender because other receipts were among the items not delivered to him. He gave the value of all the items to be US$120,000. Counsel also claimed that at the trial court, the 1st Respondent gave evidence that he paid AUD3, 770 for freight insurance and cost. Counsel contended that all these facts were not challenged by the Appellants specifically. Counsel argued that since the Appellants did not cross-examine PW1 or tendered any contrary evidence either through pleadings or by evidence in open court, the court is bound to accept, use and act upon such evidence. He cited AGBAJE V. IBRU SEA FOODS LTD (1971) 5 SC 50; OMOREGBE V. LAWANI (1930) 3-4 SC 108; NZERIBE V. DAVE ENGINEERING CO. LTD (1994) 8 NWLR Pt. 361 Pg. 124; YA’U V. DIKWA (2001) 8 NWLR Pt.714 Pg. 127 @ 151-152
Counsel further argued that the items listed in Exhibit D fall into the ambit of special damages which were particularized and specifically pleaded in the statement of claim. He argued that the contention of the Appellants that Exhibit D was not signed was irrelevant to the admissibility of the document. He argued that since the list is relevant and material to the case of the 1st Respondent and was pleaded in the amended statement of claim, it is admissible under the Evidence Act. He also argued that since the maker of the document was also the person that pleaded it, the issue of signature cannot defeat its admissibility. He referred to section 91 of the Evidence Act.
On this issue, the law is that general damages relate to all the items of loss which the plaintiff is not required to specify in his pleadings in order to permit proof and recovery in respect of them at the trial. Special damages relate to all items of loss which must be specified by the Plaintiff before they may be proved and recovery granted. See PROF. AJIBAYO AKINKUGBE V. EWULUM HOLDINGS NIGERIA LTD. (2008) 4 SCNJ 404; IYERE V. BENDEL FEED & FLOUR MILLS LTD (2008) 12 SCNJ 412. Thus, the 1st Respondent was required to specifically plead and prove all the items claimed as special damages. Paragraph 16a, which states the claim at pg. 5 of the record merely stated that the value of the personal property delivered is US$120,000 and freight/other charge AUD3, 770.00.
It is trite that pleading is not evidence. During the trial, the quotation by the forwarding agents and the invoice tendered and admitted as Exhibit A & B respectively, evidenced payment by him of the cost of the sea freight and other charges all amounting to AUD3,770.00. At page 118 of the record, the 1st Respondent stated as follows in respect of proof of the items he bought which were carried by the Appellants:
“I can also remember that part of the goods are tool boxes, some cartons of wine; 3 cartons of plates (dina) and one or two cartons of different drinking glasses which I recorded and these are the record of items.”
He had prepared an unsigned document which was vehemently opposed but was admitted as Exhibit D. This contained the list of items shipped by the 1st Respondent. There is no doubt that an unsigned document is admissible if it is pleaded depending on the circumstances of the case. If Exhibit D were an official document prepared by an official during the pendency of the suit or in anticipation thereof, it would be caught by section 91(3) of the Evidence Act. If it was used by the 1st Respondent in open court to refresh his memory, it would have been a different case. In any case, the document being pleaded was properly admissible but being unsigned, has no probative value and it is worthless as an adjudicative tool to arrive at any findings of fact. See FARO BOTTLING CO V. OSUJI (2001) 1 NWLR pt.748 pg. 311 @ 330-331.
It is in my humble view that there is no credible evidence to show that goods worth the sum of US$120,000 were shipped by the 1st Respondent. There is no doubt that the of aim for AUD3, 770.00 was proved by Exhibit A & B. I affirm the judgment of the trial court in respect of the claim of AUD3, 770. The claim for the sum of US$120,000 is dismissed being unproven. In the circumstances, the appeal is allowed in part. Parties shall bear their own costs.

RITA NOSAKHARE PEMU, JCA: I have had the, privilege of reading in draft, the Judgment just delivered by my brother H.M. OGUNWUMIJU JCA. I agree entirely with her reasoning and conclusions and I adopt same as mine.
I also subscribe to the consequential order made.

MOHAMMED AMBI-USI DANJUMA J.C.A: I have been availed the benefit of the draft of the lead Judgment just delivered, before now.
A calm perusal of the Record of Appeal disclosed that the Defendant/Respondent had variously and specifically denied relevant portions of the statement of claim, such that it cannot be right to hold that the defence was a general traverse, thus constituting in law, an implied admission. The relevant paragraphs of the defence as indicated in the lead judgment gives the lie to this assertion.
Hard as the chartered owner of the ship in this case may try, it is clear that the lost goods had been traced to his ship and he was deemed in law as the carrier under a binding charter party. For the aforesaid, the liability of the Appellant as carrier for the sum of AUD 3770.00 being freight/other charges evidenced by Exhibit A & B which were signed Quotations by Forwarding Agents and invoice tendered. The claim for $120,000 being the value of allegedly lost cargo (goods) should fail as there was no specific credible evidence aside the documentary evidence Exhibit “D” that was unsigned, and enjoyed no probative value and weight, its admissibility, notwithstanding.
For the foregoing, I agree with the conclusion in the lead judgment that this appeal should succeed in part only. Accordingly, the judgment of the learned trial Judge is also affirmed by me.

Appearances

Ayo Olorunfemi
Bukola Ade-Makanju
Busola AjetumobiFor Appellant

AND

Wahab Dako
Nnamdi OkekeFor Respondent