NIGERIAN MARITIME ADMINISTRATION AND SAFETY AGENCY & ANOR v. HENSMOR NIGERIA LIMITED
(2014) LCN/6981(CA)
RATIO
EVIDENCE: WHETHER PROBATIVE VALUE SHOULD BE GIVEN TO A DOCUMENT TENDERED BY A PERSON WHO IS NOT THE MAKER OF SUCH DOCUMENT
There is no doubt that it is a necessary requirement or condition under the provisions of Section 83(1) of the Evidence Act that where a document is tendered in evidence in a judicial proceeding that the maker ought to be called as a witness except as is permitted under subsections (1) and (2) of the section.
In this case, PW1 through whom Exhibit D was tendered was not the maker of it. There was no explanation as to why the maker of the document, DCP Nwaobilor Nzota, could not be called as a witness. See Haruna v. Modibbo (2004) 16 NWLR (pt. 900) 487 @ 544-545 G-E. It is my view that the trial court in the circumstance ought not to have given any probative value to that document. In Abdulmalik v. Tijani (2012) NWLR (pt. 1315) 461 @ 474 D-H, it was held that evidence on the content of documents or circumstances under which such documents were made by a person who was not their maker or present when the documents were made amounts to hearsay evidence. See also Olatunji v. Waheed (2012) NWLR (pt 1298) 24 at 47 E-H. In the case of Flash Fixed Odds Ltd v. Akatuga (2001) FWLR (pt 76) 709 this court held that an extract from police records, Exhibit C, which was made by a policeman but tendered through the plaintiffs father was inadmissible hearsay evidence as it was only the maker of the document that was in a position to answer questions arising from the document. Per CHINWE EUGENIA IYIZOBA, J.C.A.
MARITIME: WHAT CONSTITUTE UNSEAWORTHINESS
The area of dispute is that while the Respondent contends that a ship can only be unseaworthy if there is a defect in the equipment or appliances of the ship sufficient to render it unfit for the due and safe carrying of the crew or cargo, not being a defect which can be readily cured during voyage, (see Narumah & Sons Ltd v. NBTC Ltd (1989) 2 NWLR (Pt. 106) 730 @ 747 B); the Appellants contend that by virtue of section 388 of the Merchant Shipping Act, un-seaworthiness includes any ground upon which a ship may be detained under the Act. The Respondent has placed heavy reliance on the possible grounds itemised on Exhibit B upon which a ship may be detained which are separated with the article ‘or’ to contend that they are disjunctive and that one cannot be used in place of another. Since both sides in presenting their cases agreed that the Merchant Shipping Act is the governing statute in this matter, I do not think that the conduct of the Appellants and Exhibits B and H can be construed without considering the provisions of the Act.
In the case of Narumah & Sons Ltd v. NBTC Ltd (1989) 2 NSCC 147 @ 157 paragraph 25, it was held that: “A ship is not seaworthy if there is a defect in the equipment or appliances sufficient to render it unfit for the due and safe carrying of the crew or the cargo, not being a defect which can be readily cured during the voyage.”
However, a look at the case will reveal that seaworthiness was being considered in that case in the light of implied warranty of seaworthiness into which the owner of a ship enters with the owner of her cargo being conveyed. The implied warranty of seaworthiness attaches at the time when the perils of the intended voyage commence; that is, when she sets sail with the cargo on board for her port of destination, and that warranty is broken if she is unfit to encounter these perils, although she may have been seaworthy whilst lying in the port of loading. See Cohn v. Davidson (1877) 2 QBD 455 @ 461-462 which was considered in the Narumal case. Therefore, the definition of seaworthiness as given in the Narumal case must be understood in that con. The provisions of the Merchant Shipping Act were not considered.
Section 388 of the Merchant Shipping Act provides: 388. Where a ship is held under any provision of this Act requiring detention until the happening of a certain event, the ship shall be deemed to be finally detained for the purposes of Chapter 50 of this Act (which relates to unseaworthy ships); and the owner of the ship shall be liable to pay to the Government of the Federation the costs of and incidental to the detention and survey if any of such ship, and those costs shall, without prejudice to any other remedy, be recoverable as salvage is recoverable.” By virtue of Section 135(1) (2) and (3) of the Merchant shipping Act, the Appellants may detain a vessel sailing without valid certificates. Subsection (4) of the section makes it a criminal offence to sail without valid or with expired certificates. Per CHINWE EUGENIA IYIZOBA, J.C.A.
