NEDLLOYD LIJNEN B.V. ROTTERDAM V. OFELLY AGRO-FARMS & EQUIPMENT CO. LTD. & ANOR (2013)

NEDLLOYD LIJNEN B.V. ROTTERDAM V. OFELLY AGRO-FARMS & EQUIPMENT CO. LTD. & ANOR

(2013)LCN/6127(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 24th day of April, 2013

CA/L/682/10

RATIO

EVIDENCE: THE BASIC RULE OF PLEADING FOR DENIAL OF A FACT

The said denial is therefore insufficient and evasive as it was not substantiated with the supply of the alleged address for service on the appellant outside Nigeria and amounted to an admission of paragraph 4 of the amended statement of claim (supra). See Meridien Trade corporation Limited v. Metal construction (W.A.) Limited (1998) 4 NWLR, (Pt.544) 1 at 12 – 13 thus –
“The basic rule of pleading is that a traverse whether by denial or refusal to admit, must not be evasive but must answer the point of substance. The pleader must deal specifically with every allegation of fact made by his opponent; he must either admit it frankly or deny it boldly. Any half-admission or half-denial is evasive. In Thorp v. Holdsworth (1876) 3 Ch.D.637 at 639 Jessel M.R. commenting on a pleading in the defendant’s statement of defence to the effect that “The Defendant denies that the terms of the agreement between himself and the Plaintiffs were definitely agreed upon as alleged”, the learned Master of the Rolls, at page 641 of the Report, observed:
“Now that is evasive ……… He (defendant) is bound to deny that any agreements or any terms of agreement were ever come to, if that is what he means; if he does not mean that, he should say that there were no terms of agreement come to, except the following terms, and then state what the terms were; otherwise there is no specific denial at all”.”(My emphasis).See also Lewis Peat (N.R.I.) Ltd. v. Akhimien (1976) 1 F.N.R. 80 at 83. Per. JOSEPH SHAGBAOR IKYEGH, J.C.A

ON WHOM LIES THE BURDEN OF PROOF FOR THE TORT OF NEGLIGENCE FOR A CLAIM FOUNDED ON BAILMENT

MAXIM OF EQUITY: WHETHER THE APPLICATION OF A WRONG LAW TO A MATTER CAN NULLIFY A REMEDY TO A WRONG.

Also, once there is a remedy in law, it does not matter whether the wrong law was applied to the matter as the primary objective is to see that justice is done in the matter – see Uwegba v. Attorney General of Bendel State (1986) 1 NWLR (pt.16) 303, Falobi v. Falobi (1976) NMLR 169. There is also the maxim that where there is a right, there is a remedy which is expressed in Latin as ubi jus,ibi remedium. Per. JOSEPH SHAGBAOR IKYEGH, J.C.A

INGREDIENTS OF BAILMENT

Further, bailment is a multi-faceted head of claim. The old English case of Coggs v. Bernard (1558 – 1774) All E.R (reprint) 1 at 5-6 admirably sets out the ingredients of bailment in the words of Holt, C.J., as follows- “In order to show the grounds upon which a man shall be charged with goods put into his custody, I must show the several sorts of bailments. There are six sorts of bailments… The fifth sort is when goods or chattels are delivered to be carried, or something is to be done about them for a reward to be paid by the person who delivers them to the bailee who is to do the thing about them. The sixth sort is when there is a delivery of goods or chattels to somebody who is to carry them or do something about them gratis, without any reward for such his work or carriage, which is this present case. I mention these things, not so much that they are all of them so necessary in order to maintain the proposition which is to be proved as to clear the reason, of the obligation, which is upon persons in cases of trust.” Per. JOSEPH SHAGBAOR IKYEGH, J.C.A

JUSTICES

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria

Between

NEDLLOYD LIJNEN B.V. ROTTERDAM
(OWNERS OF “NEDLLOYD RECIFE 910YA”, “MERKUR RIVER”, “PATSYN” & “NED ABIDJAN”) Appellant(s)

AND

1. OFELLY AGRO-FARMS & EQUIPMENT CO. LTD
2. UMARCO (NIGERIA) PLC Respondent(s)

JOSEPH SHAGBAOR IKYEGH, J.C.A (Delivering the Leading Judgment): This is an appeal from a decision of the Federal High Court of Justice sitting in Lagos (the court below), awarding the total sum of One Million, Two Hundred and Ninety Three Thousand, Six Hundred and Sixty United States Dollars, Forty Cents (US$ 1,293,660.40) to the 1st respondent against the appellant for breach of contract of bill of lading and for bailment, detinue and negligence arising from the alleged failure of the appellant to deliver a cargo of motor-vehicle spare parts supplied by the 1st respondent on the appellant’s time chartered carrier, the MV Nedlloyd Recife.

In outline, the case at the court below revolved on the facts that the 1st respondent engaged a cargo ship chartered by the appellant to convey a container comprising some motor-vehicle spare parts or components covered by a bill of lading which described the goods to be 1 x 40 DC container(s) S.T.C. said to contain 1080 piston skirt (engine parts and accessories) 2,642 Head Lamps for assembling “parts and accessories”.

The bill of lading confirmed the total number of the packages to be 3,722, valued Thirty-Six Thousand, One Hundred and Seventy-Seven United States Dollars, Ninety-Two Cents (US$ 36,177.92). The claim as instituted by the 1st respondent as the plaintiff at the court below was for the total sum of Five Hundred and Fifty-Eight Thousand, Three Hundred United States Dollars (US$ 558,300), representing the alleged value of the goods.
The goods were to be shipped from Buenos Aires, Argentina, on the appellant’s time chartered common carrier for reward, for the goods to be sold on profit in Nigeria. The consignment of merchandise did not reach its destination. The appellant alleged the cargo ship went aground or sank off the coast of Sao Francisco Dosul in Brazil resulting in its failure to arrive Lagos with the merchandise.
In the course of the case at the court below, the 1st respondent amended her statement of claim by allegedly ballooning the original claim to US$ 1,396,087.90 as special damages. The sum of US$ 1,293,660.40 out of the said enlarged claim of special damages was granted by the court below after it heard evidence from the 1st respondent as plaintiff and the appellant as the 1st defendant together with the final address of their respective learned counsel.
The appellant expressed her dissatisfaction with the said judgment by filing a notice of appeal with eleven grounds of appeal against it on 25-04-05. The notice of appeal was subsequently amended by leave of the court granted on 01-11-12 by increasing the grounds of appeal to thirteen. In a brief of argument dated and filed on 02-11-12, the appellant raised thirteen issues for determination corresponding to the grounds of appeal as follows:

“1. Was the learned trial judge right or wrong when he held that the Plaintiff’s action which was originally founded on an alleged breach of a contract of affreightment (contract of carriage by sea) and pursuant to which they applied for and obtained an arrest of several vessels said to belong, to the Defendant/Appellants, was no longer one in contract but in the tort of detinue, bailment and negligence to the exclusion of the contract aforesaid? (Ground 1).

2. Was the lower court right or wrong to have deprived the 1st Defendant/Appellant of the various legal Defences that have accrued to them under the Hague Rules, 1924, the Merchant shipping Act, 1990 and the Admiralty Jurisdiction Act, 1991 (all of which were applicable to this case) on the ground that those defences can not avail the Appellants because the action was founded on the common law principles of bailment? (Ground 2).

3. Whether from the facts of the case, the plaintiff/Respondent’s claim before the court was not time-barred? (Ground 3).

4. Whether the lower court was right or wrong in holding that the Respondent could validly maintain an action against the Appellants when the said Appellants were not the beneficial owners of the MV “Nedlloyd Recife” as respect all her shares at alt material time to the claim as provided by the mandatory provisions of section 5(4) of the Admiralty Jurisdiction Act, 1991? (Ground 4).

5. Was the learned trial judge right or wrong when he held that the Appellants failed to satisfy him that they were not the owners but charterers of the MV “Nedlloyd Recife” so as to avail themselves of the defences available to them as time charterers of the said vessels? (Ground 5).

6. Whether the learned trial Judge was right or wrong when he held that the defence absolving the Appellants of all liability for the 1st Respondent’s act of knowingly and negligently mid-stating the value of the goods under the Hague Rules, 1924 incorporated into the contract of Carriage between the parties would not avail the Appellant in this case? (Ground 6).

7. Was the learned trial Judge right or wrong when he found that the 1st Respondent has proved its claim and proceeded to enter judgment in their favour for the total sum of US$1,293’660.40 notwithstanding that the Plaintiff/Respondent knowingly and with the intention to deceive the Court inflated its original claim of US$36’177.92 to US$653’420? (Ground 7)

8. Whether the learned trial Judge was right or wrong when he held that there was no proof before him that the Ship sank but that the failure to deliver the 1st Respondent’s cargo was due to the Appellants’ negligence, bailment and detention, and that consequently, the defences of limitation of liability under the provisions of the Merchant Shipping Act Capt 224 Laws of the Federation of Nigeria, 1990 would not avail the Appellant? (Ground 8).

9. Whether having regard to the evidence led before him, the learned trial Judge was right or wrong in awarding to the 1st Respondent the sum of US$535’804.40 and US$4’436 as reimbursable expenses? (Ground 9).

10. Was the learned trial Judge right or wrong when he held that he would accept the plaintiff/1st Respondent’s evidence of the value of the goods to be US$653’420 as against US$36’177.192 when their invoices and other supporting documents were in other languages than English, being the official language of the Court? (Ground 10).

11. Whether from the circumstances of the case and on a preponderance of the evidence led, the learned trial Judge was right in entering judgment for the 1st Respondent and against the Appellants? (Ground 11).

12. Whether or not the learned trial Judge had jurisdiction to adjudicate over the Plaintiff’s claim when same has been patently vitiated by reason of the Plaintiff/Respondent’s failure, neglect and/or refusal to seek and/or obtain leave of court prior to issuing its Writ of Summon for service on at least one foreign Department, or mark the Writ “concurrent” or for failing to limit the period within which the 1st Appellant may enter appearance to the mandatory minimum of thirty (30) days. (Ground 12)

13. Whether or not the learned trial Judge was right to have proceeded to enter judgment based on documents that were patently forged. (Ground 13).”

Issues 12 and 13 (supra) were argued together first to the effect that from the bill of lading in Exhibits 2 and 8 the appellant was ordinarily resident in the Netherland, outside the territorial jurisdiction of the court below, while the 2nd respondent sued along with the appellant as the 2nd defendant at the court below was at all material times ordinarily resident in Nigeria, consequently, the 1st respondent as the plaintiff at the court below was required by Order X rules 12 and 13 of the Federal High Court (Civil Procedure) Rules,1976,then applicable to the suit, to obtain the leave of the court below to issue the writ of summons against the appellant and to also endorse the writ for service outside the jurisdiction of the court below as a “concurrent’ writ and having failed to do so, the writ was incurably defective and robbed the court below of the jurisdiction to entertain the action vide sections 97 – 99 of the Sheriffs and Civil Process Act read with the cases of Owners of the MV “Arabella” v. Nigeria Agricultural Insurance Corporation (2008) 11 NWLR (pt. 1097) 182 at 206, Agip (Nig.) Ltd. v. Agip Petrol International and Ors. (2010) 5 NWLR (pt. 1187) 348, N.P.A. v. Eyamba (2005) 12 NWLR (pt.939) 409 at 448, Touton S.A. v. Grimaldi Compagnia Di Navigaziani S.P.A. and Ors (2011) 4 NWLR (pt. 1236) 1 at 24 – 26, Purechem Ind. Ltd. v. Spica Shipping Co. Ltd. and Ors. (2012) 3 NWLR (pt. 1287) 327 at 350 – 351, Skenconsult v. Ukey (1981) 12 N.S.C.C. 1, Union Beverages Ltd. v. Adamite Co. Ltd. (1990) 7 NWLR (pt. 162) 348 at 355 – 356, N.N.P.C. v. Elumah (1997) 3 NWLR (pt.492) 195, Macfoy v. U.A.C. (1961) 3 All E.R. 1169, Nzom v. Jinadu (1987) 1 NWLR (pt.51) 533, Yankwa v. Shallangwa (1996) 4 NWLR (pt.443) 489 at 497.

The appellant argued issue 13 (supra) to the effect that the 1st respondent concocted a document written in Spanish or mostly in Spanish arbitrarily increasing the claim of special damages to US$1,087.90 far beyond the actual value of the 3,722 packages contained in the bill of lading, and the two invoices, Exhibits 10A, 10B, 10C, 10D for the cargo of merchandise which was about US$36 ,177.92, therefore the exaggerated claim contained in the amended statement of claim should not have been the basis of the judgment of the court below and the award of so much of the money pleaded in the amended statement of claim should be set aside.
In arguing issue 1, the appellant stated that the action was commenced ‘in rem’ based on a contract of bill of lading between the 1st respondent and the carrier owned by the appellant and the terms of contract were confined to the bill of lading, therefore the 1st respondent could not have based her case on tort but on the terms of the contract vide Allied Trading Co. Ltd. v. GBN Line S.C. (1980 – 1986) 11 N.S.C.C. 348 at 355 and that flowing from the position above the 1st respondent could not have delivered the cargo to the appellant or entered into any contract of carriage with the appellant directly but through the shipper who would deliver the cargo to the carrier for shipment and the carrier would issue a bill of lading signed by the master of the carrier or vessel acknowledging receipt of the cargo on board the vessel vide Article 3 rules 3 and 4 of the Hague Rules, 1924, which were incorporated into the contract read with the cases of Onwadike and Co. Ltd. v. Brawal Shipping (Nig.) Ltd. and Anor. (1996) 1 NWLR (pt.422) 65 at 80, Armour and Co. Ltd. v. Walford (London) Ltd. (1921) 3 K.B. 473 at 477, Eagle Superpack (Nig.) Ltd. v. A.C.B. Plc (2006) 19 NWLR (pt.1013) 20 at 48; consequently the court below was wrong to find the appellant liable for the tort of detinue, and/or negligence to the exclusion of the contract of bill of lading in question.
The appellant also submitted on issue 1 (supra) that assuming the action was in tort, the “clear evidence” of the DW1 that the vessel carrying the cargo sank as a result of bad weather was a case of loss of the cargo occasioned by peril at sea and cannot sound in the toft of detinue which implies the wrongful refusal to deliver up a chattel to its owner vide the cases of Iheanacho and Anor. v. Uzochukwu and Anor. (1977) (?) 2 NWLR (Pt.487) 257 at 268, Unipetrol Nig. Plc. v. Buraimoh (2004) 15 NWLR (pt.897) 641 at 657, Labode v. Otubu and Anor. (2001) 7 NWLR (pt.712) 256 at 276, Incar Nig, Plc. v. Uralo General Ent. Ltd. (1998) 13 NWLR (Pt.582) 346 at 362 and Black’s Law Dictionary (Eigth Edition) 481, Salmond on the Law of Torts III (17th Edition) 1977.

The appellant submitted further on issue 1 that in cases of affreightment or carriage of goods by sea, the bailee or carrier is generally the ship owner or bareboat charterer and the charterer who is not in physical control of the cargo vessel cannot be a bailee of the goods, although there are suggestions that he may have a role as an intermediate bailee vide The Mineral Transporter or Candlewood Navigation Corporation Ltd. v. Mitsui Osk Lines Ltd. (1986) A.C. 1, therefore the appellant could not have been liable for bailment as wrongly held by the court below.
Issues 2 – 6 were argued together to the effect that the unchallenged evidence of DW1 and Exhibits 2, 8, 10A, 10B, 10C and 10D established that the cargo’s value was US$36,177.92 not the “exaggerated” amount of US$653,420 put on the goods by the 1st respondent contrary to Articles 4 and 5 of the Hague Rules, 1924. More so, the invoice relied upon by the 1st respondent was in Spanish without translation in English, nor was it notarised, therefore the court below was wrong to accept the bloated value of the goods by the 1st respondent; that the defence of the appellant through the DW1 that the goods perished in the wreck of the vessel caused by bad weather frustrated the contract and discharged the appellant from liability vide Halsbury’s Laws of England (4th Edition) (pagination not supplied) and Marine Cargo claims (3rd Edition) by William Tetley pages 31 – 32 and 539; that alternatively, even if the defence of frustration fails the loss of the goods occurred without the fault or privity of the appellant thus limiting her liability to N833, 827 .05 kobo reckoned with the 17,595 registered tonnage of the vessel assessed at N4, 739k per ton of the vessel in accordance with section 363(1) and (2) of the Merchant Shipping Act (M.S.A.) cap 224 Laws of the Federation of Nigeria (LFN) 1990, Exhibits 12 and 13, and the cases of San Lorenzo Seatrade Corporation (owners of Mt “Allergra”) v. Nigerian Ports Plc and ors. (1993 – 1995) 5 N.S.C.C. 250, Patterson Steamships Ltd. v. Robin Hood Mills Ltd. (1937) 5 LL.R 33, Lennards Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd . (1914) 1 K.B. 419, Bauchamp v. Tunel (1955) 1 T.L.R. 695. The Empire Jamaica (1955) 1 LL.R. 50, The Obey (1886) L.R.I.A. and E 102.

The appellant also argued that as 1st respondent failed to prove on the pleadings and evidence that the appellant was either the owner of the cargo vessel or its charterer by demise, the 1st respondent did not discharge the onus of proof under section 135 of the Evidence Act and the cases of Ajuwon v. Akanni (1993) 9 NWLR (pt.316) 182 at 200 – 201, Akanmu v. Adigun (1993) 7 NWLR (pt.304) 218 at 231, Obimiami Brick and stone (Nig.) Ltd. v. ACB Ltd. (1992) 3 NWLR (pt.229) 260 at 293 Anyah v. Ann Ltd. (1992) 6 NWLR (pt.247) 319 at 331; that the appellant’s case based on Exhibits 9, 9(a), 9(b) and 13 that she was time charterer of the cargo vessel not its beneficial owner or its demise charterer should have entitled the court below to hold that a claim could not have been brought against the vessel vide section 5(4) of the Admiralty Jurisdiction Decree No. 59 of 1991, now section 5(4) of the Admiralty Jurisdiction Act A5, Laws of the Federation (LFN) 2004, MV’s Araz’ v. Scheel (1996) 5 NWLR (Pt.447) 204 at 219, MV’s Araz v. LPG Shipping S.A. (1996) 6 NWLR (Pt.457) 720 at 732, Andrea v. Ursula (1971) 1 All ER 821.
The issue of time bar was also canvassed on issues 2 – 6 (supra) that the cargo was to be delivered in Nigeria on 30-4-96 and the failure to deliver it on the said date gave the 1st respondent a cause of action commencing on 30-4-96 which was to run for one year terminating on 02-05-97, therefore the suit filed by the 1st respondent on 28-10-97 was seventeen (17) months outside the one year time limit prescribed by Article 3 rule 6 of the Hague Rules of 1924, which has been codified into the Carriage of Goods by sea Act (CAP.44) Laws of the Federation of Nigeria (LFN), 1990, read with clauses 1 and 6(2) and (5) of reverse side of the bill of lading evidencing the contract of affreightment and the cases of Fadare v. Attorney General of the Federation (1982) ANLR 26 at 37 and 42, Leventis Technical Ltd. v. Petrojessical /Ent. Ltd. (1999) 6 NWLR (Pt.605 ) 45 at 56 and 58, Jfs Investment Ltd. v. Brawal Lines Ltd. and Ors. (2010) 18 NWLR (pt. 1225) 495 at 531 and 440, Sona Breweries Plc v. Peters (2005) 1 NWLR (pt.908) 478, Owoniboys Technical Services Ltd. v. U.B.N. Ltd. (2003) 15 NWLR (Pt.844) 545, Standard (Nig.) Eng. Co. Ltd. v. N.B.C.I. (2006) 7 NWLR (pt.978) 198, NICON v. Power Ind. Eng. Co. Ltd (1986) 1 NWLR (Pt.14) 1 at 21, B.G.C.C. v. C.M.I.S. Ltd. (1962) 2 SCNLR 310, Lawal v. G.B. Ollivant (Nig.) Ltd. (1972) 3 SC 129, Mobil Oil (Nig.) Plc v. IAL 36 INC (2000) 6 NWLR (Pt.659) 146.

The argument on issue 7 reiterated the arguments under issues 1 – 6 adding that based on the bill of lading, Exhibits 2 and 8, and the evidence of the DW1 the cargo of 3,722 had the value of US$36,177.92, not the inflated value of US$293,660.40 stated in Spanish in the invoice tendered by the 1st respondent, therefore the court below was in error to have believed the 1st respondent’s case to find that it had proved its claim upon which the court below wrongly awarded the total sum of US$1,293,660.40 in favour of the 1st respondent vide Isamade v. Okei Okei (1998) 2 NWLR (Pt.538) 455 at 468, Fabumiyi v. Obaje and Anor. (1968) 5 SC 247, Woluchem and Ors. V. Gudi and Ors. (1981) 5 SC 326, Watt (or Thomas) v. Thomas (1947) 1 All E.R. 582, Board of Customs and Excise v. Barau (1982) 10 S.C. 48 at 137, Ogbechie v. Onochie (1986) 2 NWLR (Pt.23) 484 at 492.

The appellant adopted the arguments on issues 1 – 7 (supra) for issue 8 to conclude that since the appellant was not the owner of the cargo vessel she could not have been a bailee of the cargo to be liable for bailment citing in support the case of Candlewood (supra) at page 1; also, the appellant adopted the submissions on issues 1 – 8 (supra) for issue 9 and added that the shipper gave the cargo to the appellant as carrier in accordance with shipping practice vide Modern Bills of Lading edited by Paul Todd, so the 1st respondent had no business to travel to Argentina long after the 1st respondent was told the cargo vessel had left Argentina, and the court below was wrong to award reimbursable expenses of US$4,436 to the 1st respondent. More so, the air tickets tendered in evidence for the expenses were written in Arabic and it was also inconceivable that a cargo of US$36,177.92 would attract a profit of US$535,804.40.
The appellant also adopted the arguments on issues 1 – 9 (supra) for issue 10 to contend further that the decision of the court bellow in accepting the 1st respondent’s evidence of the value of the goods to be US$653,424 as against US$36,177.92 based on a hand written receipt in Spanish was perverse, as it was also “intriguing” that the PW1 said he said cash for the goods in Argentina, but did not read evidence of how he purchased the foreign exchange and was able to carry the huge sum of money in cash out of Nigeria without flouting the Nigerian Exchange Regulations’ which the court below was bound to enforce.
The appellant relied on the submissions on issues 1 – 10 (supra) in support of issue 11, adding thereon that there were material inconsistencies and contradictions in the evidence of the PW1 earlier set out under issues 1 – 10 (supra) such that no reasonable court could have believed the said evidence, consequently it was perverse and amounted to a miscarriage of justice for the court below to have accepted the PW1’s said evidence and this Court should interfere with and reverse the said findings of fact and re-evaluate the evidence in favour of the appellant vide Mba v. Agu (1999) 2 NWLR (pt.629) 1 at 14, Adegoke v. Adibi (1992) 5 NWLR (pt.242) 410, Agbomeji v. Bakare (1998) 9 NWLR (pt.564) 1 at 8, Odiba v. Azege (1998) 9 NWLR (Pt.566) 370 at 384, Mogaji v. Odofin (1978) 3 S.C. 91 at 93, Uzuegbu v. Progress Bank (1988) 4 NWLR (pt.87) 236 at 248 – 250, Elohor v. Osayande (1992) 6 NWLR (Pt.249) 524 at 548, Mafimisebi v. Ehuwa (2007) 2 NWLR (Pt.1081) 385 at 433.
Based on the arguments above, the appellant urged the appeal to be allowed and the decision of the court below set aside and an order of dismissal of the suit at the court below be entered in consequence.
The respondents did not file brief of argument, though duly served with the appellant’s brief. The appeal was accordingly argued on the appellant’s brief alone under Order 18 rule 10 of the Court of Appeal Rules, 2011 (the Rules of this Court).
The civil summons on page 1 of the record of appeal (the record) has the address for service on the appellant at No.5 Creek Road, Apapa, Lagos State, Nigeria. So is the claim on pages 2 and 3 of the record with emphasis on page 3 thereof where the appellant’s address for service is given at “Umarco House”, 5, Creek Road, Apapa, Lagos State, Nigeria, within the territorial jurisdiction of the court below.
There is also the statement of claim on pages 132 – 142 of the record with paragraph 4 thereof stating that –

“The first Defendant (Appellant here) is a foreign company with office and place of business in UMARCO HOUSE, NO. 5 CREEK ROAD, APAPA, LAGOS STATE, NIGERIA and carries on business in Nigeria”.

So is paragraph 4 of the amended statement of claim on page 384 of the record. The appellant’s statement of defence on pages 267 – 269 of the record particularly paragraph 5 thereof on page 267 of the said record traversed paragraph 4 of the statement of claim thus –

“Save to say that the first Defendant is a foreign company the rest of the averments contained in paragraph 4 of the statement of claim are denied”.

So is paragraph 4 of the amended statement of defence on page 441 of the record, and paragraph 5 of the further amended statement of defence on page 520 of the record as well as paragraph 5 of the 2nd further amended statement of defence on page 535 of the record.
The said denial is therefore insufficient and evasive as it was not substantiated with the supply of the alleged address for service on the appellant outside Nigeria and amounted to an admission of paragraph 4 of the amended statement of claim (supra). See Meridien Trade corporation Limited v. Metal construction (W.A.) Limited (1998) 4 NWLR, (Pt.544) 1 at 12 – 13 thus –
“The basic rule of pleading is that a traverse whether by denial or refusal to admit, must not be evasive but must answer the point of substance. The pleader must deal specifically with every allegation of fact made by his opponent; he must either admit it frankly or deny it boldly. Any half-admission or half-denial is evasive. In Thorp v. Holdsworth (1876) 3 Ch.D.637 at 639 Jessel M.R. commenting on a pleading in the defendant’s statement of defence to the effect that “The Defendant denies that the terms of the agreement between himself and the Plaintiffs were definitely agreed upon as alleged”, the learned Master of the Rolls, at page 641 of the Report, observed:
“Now that is evasive ……… He (defendant) is bound to deny that any agreements or any terms of agreement were ever come to, if that is what he means; if he does not mean that, he should say that there were no terms of agreement come to, except the following terms, and then state what the terms were; otherwise there is no specific denial at all”.”
(My emphasis).
See also Lewis Peat (N.R.I.) Ltd. v. Akhimien (1976) 1 F.N.R. 80 at 83.
The insufficient denial of the amended statement of claim together with the evidence of the P.W.1 on pages 285and 298 of the record and the evidence of the DW1, on employee of the appellant (P. and O O. Nedlloyd), on page 445 of the record that the appellant had an office at No. 5 Creek Road, Apapa, establish that at all material times the appellant had an office in Lagos, where she conducted business, showing appellant was within the territorial jurisdiction of the court below.
Accordingly, at all material times, the appellant had an office at No.5 Creek Road, Apapa, Lagos, where she used to carry on business within the territorial jurisdiction of the court below. Therefore no leave of the court below was required to be obtained before issuance of the said writ of summons. See Ezomo v. Oyakhire (1985) 1 NWLR (pt.2) 177 at 208 where the Supreme Court held in the judgment of Karibi-Whyte-, J.S.C., that-
“Prima facie, the writ of summons is valid, since it has an address for service within the jurisdiction. In such a circumstance leave of the Judge or court would seem not to be required in order to sign the writ… Appellant has not led any evidence to show that he has no address for service within the jurisdiction. On the face of the writ of summons, it is not a writ for service outside the jurisdiction, and in my opinion did not require leave of the Court or Judge for signing or sealing.”
Nor was endorsement for service of the writ of summons and the other processes of the court out of the territorial jurisdiction of the court below required to be made on the said court processes by the 1st respondent before effecting service of the processes on the appellant whose address for service was within jurisdiction of the court below.
Even though the documentary evidence (Exhibits 9(a), 9(b) and 13) referred to by learned senior counsel for the appellant in the record supports the contention that the appellant did not own the vessel but was a time charterer of the vessel, the contract of bill of lading imposed a trust on the appellant who was in control of the vessel as time charterer alongside the vessel or ship owner to convey the goods or cargo from Argentina to Lagos for and on behalf of the 1st respondent. See Mediterranean Shipping Co. S. A. and Anor. v. Mr. Alexander Enemaku and Anor (2012) 11 NWLR (Pt. 1312) 583 suing the vessel that conveyed the cargo in its name was in that wise appropriate as the claim arose out of an agreement (bill of lading) relating to the carriage of goods by sea in a ship or vessel vide Pacers Multi-Dynamics Ltd. v. Dancing sister and Anor. (2012) 4 NWLR (Pt.1289) 169, Mediterranean Shipping Co. S.A. and Anor. (supra) read with Halsbury’s Laws of England, Fourth Edition Reissue, Volume 1 pages 427 – 429 paragraph 312 citing in support the English case of Catoil International Inc. v. Arkwright Boston Manufacturers Mutual Insurance Co. (1985) AC 255 or (1985) 1 All ER 129 where it was held that an agreement having a reasonably direct connection with the carriage of goods by sea in a ship was covered by the litigation.
Consequently, the liability of the appellant as bailee of the goods depended on her constructive control or charge over the cargo vessel as time charterer, not its ownership by the appellant, in my view. See also The Mineral Transporter case (supra) cited by the appellant’s learned senior counsel where it was suggested that a time charterer of a vessel had a role as an intermediate bailee. Sections 2(f) and 5(4) of the Admiralty Act (supra) also include the owner or charterer of a ship which may be sued in rem in the circumstances that brought about the action. See again Mediterranean Shipping Co. S.A. (supra).
The plea of time bar of the action averred in paragraph 29 of the 2nd amended statement of defence on page 537 of the record was general in terms. It neither referred to the facts showing the time the cause of action arose and the time it expired, nor was the relevant section of the enactment sought to be applied pleaded. Nothing was also said of the Merchant shipping Act (M.S.A.) as another anchor for the plea of time bar. I think the said plea was not sufficiently pleaded vide Niger/Benue Transport Company Ltd. v. Narumal and sons Nigeria Ltd. (1986) 4 NWLR (Pt.33) 117 at 131. In addition, the alleged loss of the goods was not established to be due to collision of the vessel with another ship at sea to call in aid the protection afforded by the M.S.A. see Niger Benue Transport Ltd. (supra) at Page 132.
Section 363(1) of the Merchant shipping Act (M.S.A.) (supra) opens with the words “No owner of a commonwealth or foreign ship…” showing those excluded from liability are owners of commonwealth or foreign ships.
The appellant made the point alright, in my modest view, that she was time charterer of the cargo vessel, not its owner, therefore appellant is not protected by section 363(1) of the M.S.A.
I have seen the proforma form, Exhibits 1 and 6, which are on pages 614- 615 0f the record. Under the column for the vessel that was to carry the goods is written “ANY VESSEL”. The shipping date on it is vacant. There is also no mention of the appellant in Exhibits 1 and 6 as the cargo carrier. In short the name of the appellant is not on Exhibits 1 and 6. Nor is there any indication on the said Exhibits that they are referable to the appellant as the carrier or bailee of the goods mentioned therein. I agree w1h the appellant that Exhibits 1 and 6 had no nexus with her and cannot be used to impute that she was put in charge of automobile spare parts valued US$ 653,420 to transport from Argentina to Nigeria for and on behalf of the 1st respondent.
The bill of lading, Exhibit 8, which is on pages 668 and 669 of the record has the name of the 1st respondent as the consignee and the appellant as the party carrying the consignment made up of 1,080 automobile piston skirts or automobile engine parts and accessories and 2,642 automobile head lamps or parts and accessories for assembling totalled 3,722 automobile spare parts. They were packaged in one container “clean on board” the carrier vessel that was carrying it under the control of the appellant as charterer on 29-02-1996, and were to be shipped from Buenos Aires, Argentina, to Apapa, Lagos, Nigeria, for and on behalf of the 1st respondent. So the 1st respondent had the standing or right to sue the appellant in the circumstance of the case. See Pacers Multi-Dynamics Ltd. (supra) at 193, 206, Mediterranean Shipping Co. S.A. and Anor. (supra).
Exhibits 10A and 10B are the invoices of the shipped goods written in Spanish language which were translated into English as Exhibits 10C and 10D with Exhibit 10c valuing the goods contained therein at US$16,704.00 and Exhibit 10D valuing the goods at US$19,473.92, making grand total of US$36,177 .92. From the pieces of credible evidence highlighted above, the value of the cargo was US$ 30,177.92, not US$ 653,420. The court below accordingly erred in holding that the value of the cargo was US$ 653,420. Issue 13 (supra) is therefore resolved in favour of the appellant to the effect that the credible evidence referred to above established that the value of the cargo was US$ 36,177.92.
The amended statement of claim on pages 383 – 396 of the record with emphasis on paragraphs 9 – 26 thereof hinged primarily on bailment.

The tort of negligence, conversion, detinue were pleaded in the amended statement of claim as follow-up remedies to the paramount claim grounded on bailment. I do not consider the combination of the tortious reliefs with the relief for bailment objectionable or wrong. For in Abulsomwan v. Mercantile Bank Ltd. (1987) 3 NWLR (pt.60) 196, the Supreme Court recognised that an action in contract could also give rise to an action in tort from the same transaction. The matter was well put by Karibi-Whyte on page 208 of the law report as follows –
“Since the 1920s the trend has developed of discarding the 19th Century view that a tort cannot arise from the breach of contract. It is now the law that an action in tort for negligence can arise de hors contract of the parties.

The fog over remedies arising from breach of contractual obligations introduced into the law by what was conveniently regarded as the “privity of contract fallacy” was cleared by the brightness brought in the lucidity of the arguments of Lord Atkin in Donoghue v. Sevenson (1932) A.C. 562″.
See Broadline Ent. Ltd v. Montery maritime Corporation and Anor. (1995) 9 NWLR (pt.417) 1 at 24, 26 – 27, Pacers Multi-Dynamics Ltd. (supra) at 193.

In the case of a claim originally founded on bailment, as was the case at the court below, the tort of negligence is always contemplated and/or embedded in the claim as a presumption that places the onus on the bailee to establish that he was not negligent in handling the goods of the bailor. See Panalpina World Transport (Nig.) Ltd. v. Wariboko (1975) 9 N.S.C.C. 21 at 24, Ogugua v. Armels Transport Ltd. (1974) 3 S.C. 139, and Broadline Ent. Ltd v. Montery Maritime Corporation and Anor. (supra) where bailment was held to overlap the law of contract and tort to dove-tail in an action on its own, sui generis.
Also, once there is a remedy in law, it does not matter whether the wrong law was applied to the matter as the primary objective is to see that justice is done in the matter – see Uwegba v. Attorney General of Bendel State (1986) 1 NWLR (pt.16) 303, Falobi v. Falobi (1976) NMLR 169. There is also the maxim that where there is a right, there is a remedy which is expressed in Latin as ubi jus,ibi remedium.
Further, bailment is a multi-faceted head of claim. The old English case of Coggs v. Bernard (1558 – 1774) All E.R (reprint) 1 at 5-6 admirably sets out the ingredients of bailment in the words of Holt, C.J., as follows-

“In order to show the grounds upon which a man shall be charged with goods put into his custody, I must show the several sorts of bailments. There are six sorts of bailments… The fifth sort is when goods or chattels are delivered to be carried, or something is to be done about them for a reward to be paid by the person who delivers them to the bailee who is to do the thing about them.

The sixth sort is when there is a delivery of goods or chattels to somebody who is to carry them or do something about them gratis, without any reward for such his work or carriage, which is this present case. I mention these things, not so much that they are all of them so necessary in order to maintain the proposition which is to be proved as to clear the reason, of the obligation, which is upon persons in cases of trust.”
With great respect to the learned senior counsel for the appellant, I do not see anything amiss with lumping the tortious claims together with the claim for bailment; all the more so the court below was able to see its way through at the end of the day in its judgment on pages 695 – 709 with emphasis on pages 707 – 709 thereof that the action was basically founded on bailment which was the taproot of the suit, in which it became necessary to examine whether the ancillary tort of negligence, conversion and detinue permeated the principal claim of bailment. See Facers Multi-Dynamics Ltd. (supra)
There is a presumption of prima facie negligence against the bailee who has the burden to discharge that he was not negligent in looking after the goods of the bailor. It does not matter whether the bailment is gratuitous or for a reward – see Panalpina (supra) and Ogugua (supra).
The appellant put forward the defence that the goods perished by the sinking of the carrier en route to Nigeria due to bad weather, an act of God.
Nobody aboard the carrier gave evidence of the alleged disaster at sea.
The DW1 who never left the shores of Nigeria at the material time was the only witness that testified to the alleged sea disaster. The court below did not believe him.
The court below saw the demeanour of the DW1 in the course of giving evidence, an advantage an appellate court does not have, therefore I have no cause to doubt the negative view taken of the evidence of the DW1 by the court below- see Ojibah v. Ojibah (1991) 15 NWLR (pt.189) 296, Omotayo v. C.S.A. (2010) 16 NWLR (Pt.1218) 1; Tanko v. Echendu (2011) 18 NWLR (1224) 253, and Kaycee (Nig.) Ltd. V. Prompt Shipping Corp. (1986) 1 NWLR (Pt.15) 180 at 195 last sentence to 196.
I think the defence of act of God (bad weather) appeared hollow, in that the appellant, a business organization out to mike profit, not a philanthropist, could not have offered the sum of US$ 36,177.92 to the 1st respondent as compensation for the non delivery of the goods, as suggested to the PW1 in the course of his cross-examination by the appellant’s learned counsel on page 335 of the record, if she was innocent of the charge of failure to deliver the goods. Also, at the risk of repetition, the said offer operated as a waiver of the appellant’s plea of limitation of action. See Nigerian National Shipping Line Ltd. v. Gilbert Emenike (1987) 4 NWLR (Pt.63) 77 at 87 (Letters G-H).
Moreover, the action for bailment was based on care and trust. Care entailed attention and responsibility to handle the goods of the bailor to safety. And trust entailed the bailee to be sincere, good and honest in handling the goods of the bailor who had confidence in the bailee that the bailee had the credentials to be entrusted with the said goods for safe delivery to the bailor. Therefore it would be unconscionable for the appellant to seek to avoid the obligation placed on her as bailee of the goods in question. See Coggs v. Bernard (supra) on page 1 of the law report thus –
“As to the fifth sort of bailment, viz., a delivery to carry or otherwise manage for a reward to be paid to the bailee…, The law charges this person thus entrusted to carry goods against all events but acts of God and of the enemies of the King. For though the force be never so great, as if an irresistible multitude of people should rob him, nevertheless, chargeable. This is a politic establishment, contrived by the policy of the law for the safety of all persons, that they may be safe in their ways of dealing, for else these carriers might have an opportunity of undoing all person that had any dealings with them, by combining with thieves, etc., and yet doing it in such a clandestine manner as would not be possible to be discovered. This is the reason the law is founded upon in that point.”
(My Emphasis).

The sinking of a registered ship as the carrier of the cargo of the 1st respondent is such a serious thing that should have attracted documentation, as such commercial or cargo vessels are usually/normally insured, so it was not out of place for the court below to hold that documentary evidence was required to prove the loss of the ship by sinking at sea through bad weather, in my view.
Because the appellant pleaded in paragraph 12 of her 2nd amended statement of defence on page 536 of the record that she would rely on various reports relating to the alleged loss of the vessel at sea due to bad weather without tendering any of the reports in evidence. Moreover, it was not established that the vessel which was registered with Lloyds was deregistered by Lloyds or deleted from its register of vessels due to shipwreck or loss at sea. In light of the above, I affirm the holding of the court below that the defence of act of God (bad weather) was not made out by the appellant.
The onus was thus on the appellant to explain what happened to the goods to exculpate her from liability by shaking off the prima facie negligence imposed on her by law see Panalpina (supra), Ogugua (supra) and Coggs (supra). The appellant did not discharge the said onus. Consequently, the court below was quite right, in my view, in finding that the appellant did not account for the goods and was liable for the failure to deliver the goods or cargo to the 1st respondent.
Now on the quantum of damages. The court below made the following award in its judgment on page 709 of the record thus –
“On the whole the action succeeds and judgment is hereby entered for the plaintiff (1st respondent) in the following terms:-
a. The sum of USD 653,420 be the value of the cargo.
b. The sum of USD 4,436 be the expenses incurred in connection with the trip to Argentina.
c. The sum of USD 535,804.40 be damages for loss of profit.
Total of USD 1,293,660.40”.

I earlier held that the value of the cargo was US$ 36,177.92. Being a claim for bailment the 1st respondent was essentially and primarily entitled to judgment in respect of the value of the goods only – See W.A.E.C. v. Koroye (1977) 2 SC 45 at 50, Holts Transport Ltd. v. Chellarams and Sons (Nig.) Ltd. (1973) 3 SC 59, A.M.C. v. N.P.A. (1987) 1 NWLR (Pt.51) 475 at 487.
The sum of US$4,436 awarded by the court below for the expenses incurred by the 1st respondent in connection with his trip to Argentina was primarily based on air tickets with warranties contained in Exhibits 4 and 4A which are on some parts of pages 618 – 657 of the record. The said air tickets are written in Arabic. They were not translated into English, the language of the court, therefore they have no probative or evidential – value and the award of US$ 4,436 based on them cannot stand. See Ojengbede v. Esan (2001) 18 NWLR (Pt.746) 771, Damina v. The State (1995) 8 NWLR (Pt.415) 513, Ogboriefon v. Ogboriefon (2012) All FWLR (Pt.625) 321 at 334 and 340.

Moreover, the 1st respondent’s alleged journey to Argentina was unnecessary as rightly contended by the appellant, therefore the 1st respondent failed to minimise damages and the alleged expenses for the journey to Argentina were accordingly not reasonably incurred and not reimbursable. I hereby set aside the said award.

The award of US$535,804.40 for loss of profit sounded in special damages. See Attorney General of Oyo State and Anor. v. Fairlakes Hotels Ltd. and Anor. (1989) 5 NWLR (Pt.121) 255.
The amended statement of claim which is on pages 359 – 372 of the record pleaded loss of profit in paragraph 22(b) thereof on page 366 of the record as follows –

“Loss of profit on the sale of the said Goods at 82% profit margin = USD 535,804 (equivalent at N50,901,418 converting at N95 per USD”.
The amended statement of claim, especially paragraphs 7 and 22(b) thereof, itemised the goods.
Unchallenged evidence on loss of profit was given by PW1 for the 1st respondent, therefore the court below was entitled to award damages for loss of profit which has to be limited to the value of the goods earlier found in the discourse to be US$ 36,177.92, instead of US$ 653,420 awarded by the court below. See Koroye v. W.A.E.C. (supra) at 51 – 52 where the great jurist Bello, J.S.C., (later CJN, now of blessed memory) held –
“… in appropriate cases where the person damnified suffered damage or loss of such nature that it flowed directly from the breach, he may also recover such damages as may compensate his loss: General and Finance Facilities Ltd. v. Cook Cars (Romford) Ltd. (1963) 2 All E.R 314”.

P.W.1, a Mr. Felix Anada, testified for the 1st respondent on pages 313 – 314 of the record that anticipated profit on the goods was 82% of the value of the goods. The appellant did not cross-examine the P.W.1 on the said piece of evidence, nor did the appellant tender evidence on anticipated profit to establish the contrary of what the 1st respondent claimed and P.W.1 testified to. Accordingly, the said unchallenged evidence that the loss of profit was 82% of the value of the goods established that leg of claim pegged on 82% value of the goods, in my view. See Odinaka v. Moghalu (1992) 4 NWLR (pt.233) 1 at 8- 9, 13 – 14. 82% of US$36,177.92 which is US$29,665.89 shall be the amount the 1st respondent will be entitled to as loss of profit.
In the result the appeal succeeds in part on the quantum of damages but fails on the issue of liability. I would allow the appeal in part on the issue of the quantum of damages and vary the judgment of the court below by limiting the damages to US$ 36,177.92 for the value of the goods in question only, plus 82% of US$ 36,177.92 amounting to US$ 29,665.89 which put together comes to US$ 65,843.81 which I hereby award to the 1st respondent in place of US$ 1,293,660.40 awarded by the court below to 1st respondent. Parties to bear their costs.

RITA NOSAKHARE PEMU, J.C.A.: I have read in draft, the judgment just delivered by my brother JOSEPH SHAGBAOR IKYEGH J.C.A. and I agree entirely with his reasoning and conclusions.
The appeal is allowed in part and I subscribe to the consequential order made as to costs.

IBRAHIM MUSA SAULAWA, J.C.A.: I had read, before now, the judgment in draft prepared and delivered by my learned brother, IKYEGH, JCA. Having perused the briefs of argument of the learned counsel to the respective parties vis-a-vis the records of appeal, I entire agree with the reasoning and conclusion thereby reached in the judgment, to the effect that the appeal succeeds in part. I equally allow the appeal in part regarding the issue of quantum of damages, and accordingly abide by the consequential order made therein.

Appearances

Mr. O. Atoyebi, SAN, (with Messrs. A. Olorunfemi, T. Gaji and F. Afolayan)For Appellant

AND

1st respondent (unrepresented; did not file brief).
Dr. A. A. Olawoye for 2nd respondent (did not file brief).For Respondent