SUNNY OSITEZ INTERNATIONAL NIGERIA LIMITED v. DELMAS & ORS (2013)

SUNNY OSITEZ INTERNATIONAL NIGERIA LIMITED v. DELMAS & ORS

(2013)LCN/6428(CA)

In The Court of Appeal of Nigeria

On Thursday, the 18th day of July, 2013

CA/L/1221/2010

JUSTICES

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria

CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria

Between

SUNNY OSITEZ INTERNATIONAL NIGERIA LIMITED Appellant(s)

AND

1. DELMAS
2. CMA CGM DELMAS
3. CMA CGS DELMAS NIGERIA LTD Respondent(s)

RATIO

WHETHER OR NOT IT IS THE PREROGATIVE OF A TRIAL JUDGE TO EVALUATE THE EVIDENCE OF WITNESSES BEFORE IT AND ASCRIBE PROBATIVE VALUE TO IT

The law is that it is the prerogative of a trial Judge who sees and listens to witnesses to choose which to believe and ascribe probative value to his or her evidence. It is not the place of an appellate court to evaluate evidence which has already been evaluated by a trial court which has not been shown to be perverse: Abeke v The State (2007) 3 SC (Pt. 11) 105 Per Mukhtar JSC. PER IYIZOBA, J.C.A.

WHETHER OR NOT THE APPEAL COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT

WHETHER OR NOT PARTIES ARE BOUND BY THE CONDITIONS AND TERMS IN A CONTRACT THEY FREELY ENTERED INTO

CHINWE EUGENIA IYIZOBA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of Olatoregun-Isola J. of the Federal High Court Lagos Division in suit No. FHC/L/CS/5547/2008 delivered on the 9th day of July, 2010 dismissing the appellant’s suit as time barred.
The Appellant’s case is that it imported two containers of electrical goods from overseas and entrusted the carriage to the Respondents, via the Respondents vessel “CMA CGM OUBANGUI VOYAGE 062”.
The vessel arrived Berth 16 Apapa Sea Port Lagos in January 2008 and discharged the Appellant’s two containers in conditions which indicated that Hold No.5 which housed the containers were flooded during voyage. By a letter dated 22/1/08 from Petromarine Technical Service Limited, the Respondents’ Protection and Indemnity Club Representative, the Respondents requested the Appellant to contact Petromarine Technical Services Limited for a joint inspection and survey. The Appellant complied. The joint inspection confirmed that 605 cartons of the consignment were damaged. The Appellant demanded for payment for the damaged items and upon refusal to pay, the Appellants instituted this action.
The Respondents agreed that the damage occurred due to the flooding on board the vessel CMA CGM OUBANGUI. They however contended that the action ought to have been instituted against the owners of the Vessel or Petromarine who had by their letter of 22/1/08 admitted liability. Secondly, that the bill of lading is a combined transport bill by which fact the suit ought to have been instituted within 9 months of the accrual of action and that same having been instituted outside the said 9 months was time barred. Thirdly, that as bailees they, the Respondents did all that they could have done to protect the goods of the Appellant.
At the trial the Appellant testified through its Managing Director and called one other witness. The Respondents called one witness. Both sides tendered several documents as exhibits. At the conclusion of trial, the learned trial Judge dismissed the Appellant’s case. The Appellant being dissatisfied with the judgment filed a notice of appeal in this Court containing four grounds of appeal, out of which the three issues were distilled as follows:
1. Whether from the evidence on record the carriage contract between the Appellant and the Respondents is a Combined Transport Shipment contract or a Port to Port Carriage contract. (Ground 1)
2. Whether the learned trial judge properly evaluated the evidence adduced in the case before arriving at a conclusion that the contract of carriage entered between the Appellant and the Respondents is a Combined Transport Shipment contract. (Grounds 2 and 4).
3. Whether the provisions of the bill of lading (Exhibit E) on Time Bar applied to the carriage contract between the Appellants and the Respondents. (Ground 3).
The Respondents on their part formulated four issues for determination. The issues are:
1. Whether or Not the Bill of Lading is a Combined Transport Bill of Lading or a Port to Port Bill of Lading.
2. Whether or not the learned trial Judge evaluated the evidence Adduced before arriving at a conclusion that the contract between the parties was a Combined Transport Bill of lading.
3. If the answer to issue (i) is in the affirmative, then whether By virtue of Clause VI (9) of the Contract of Carriage the suit is Time Barred.
4. Whether the Respondents were negligent and were careless as Bailees or whether there was a breach of contract.
Issues 1-3 of the Appellant’s issues and issues 1-3 of the Respondents’ issues are the same. I will therefore adopt the Appellant’s three issues in the determination of the appeal. The Respondents’ additional 4th issue is in my view not relevant in the determination of this appeal.
ISSUE 1
Whether from the evidence on record the carriage contract between the Appellant and the Respondents is a Combined Transport Shipment contract or a Port to Port Carriage contract. (Ground 1)
APPELLANT’S ARGUMENTS:
Learned Counsel on issue 1 submitted that the carriage contract between the Appellant and the Respondents is not a combined transport shipping contract but that of port to port shipping contract notwithstanding the asterisk on the face of Exhibit E, (Bill of Lading). Counsel submitted that the document evidenced a port to port contract which is the contract the Respondents performed. Counsel argued that a combined Transport Bill of Lading otherwise known as ‘COMBICONBILL’ covers transport from door to door by several modes of transport. Counsel referred to the Book “The Shipmaster’s Business Companion” 4th Edition (2004), a publication of The Nautical Institute page 534 paragraph F07b.8 titled Types of Bill of Lading. He submitted that it is usually used by Liner companies who want to offer a full service to their customers by carrying their goods from door to door. Such Bill of Lading must show on its face mode of pre-carriage. It must also be shown on the face of the bill if any other mode of carriage took place in the country of export, before the carriage by sea. The Bill of Lading must show a specific address as place of final Delivery of the Goods other than a sea port in the country of import. In addition, there must be evidence available to a court seised with interpreting the status of the Bill of Lading contract, the mode of carriage of the Goods to the place of final Delivery by the carrier in the country of import.
Combined Transport, counsel contended is the combination of at-least two types of transport in a uniform transport chain that does not involve the changing of the transport units. Counsel referred us to the book “Shipping law” 2nd edition, 2001 by Simon Baughen at page 145. Learned counsel submitted that there is no doubt that the Bill of Lading in this case, Exhibit E is pliable. It could be used either as a Port to Port Bill of Lading or alternatively as a Combined Transport Bill of Lading. Exhibit E is first and foremost designed as a Port to Port Bill of Lading; see Clause IV on the reverse side titled Carriers Responsibility: Port to Port Shipment. It is further designed for an alternative use as a Combined Transport Bill of Lading; see Clause V on the reverse side titled Carriers Responsibility: Combined Transport. It is submitted that whichever of the two alternatives Exhibit E is used for, is a question of law and fact. Learned counsel submitted that to determine which of the alternative uses Exhibit E was put to, the court must take into consideration the place of the loading of Appellant’s containers and the place of discharge of the containers by the Respondents. The court must also consider the place of final delivery of the containers and who delivered them. The answers counsel contended will be found in Exhibits E, F and B. Exhibit E shows that the first contact the Respondents made with the Appellant’s containers in the country of export was at the load port, i.e. CHIWAN Port. Exhibit F dated January 22, 2008 shows in its paragraph 2 that the last contact the Respondents had with the Appellant’s containers was at Berth 16 Apapa Port when Petromarine Technical Services Limited as damage surveyors “attended onboard the vessel on arrival at berth 16 Apapa Port Lagos to witness the DISCHARGE of the containers destined for Lagos that were stowed in No. 5 hold.” Exhibit B in its page 2 paragraph 1 shows that the Appellant’s two containers (subject containers) were discharged from the relevant carrying vessel at APMT Terminal (which is also called Berth 16 Apapa Port), Apapa on January 21, 2008 and that prior to the author’s completion of documentation and the subsequent delivery of the containers to the Appellant, it received Exhibit F. It submitted that all the facts stated here are consistent with the view that this shipment is a port to port shipment and not a combined transport shipment. To further strengthen this view, the Respondent’s only witness admitted in cross examination that the carriage contract is a port to port carriage contract. Counsel referred to the witness testimony at page 46 of the Records (last line).
Learned counsel submitted that on the other side of the scale, there was no evidence introduced to show that the carriage contract was Combined Transport contract. The trial court based its view that the carriage contract was a combined transport contract on mere Asterisk. It is submitted that Asterisk is not enough to change the legal and factual characteristic of a contract. Exhibits B, E and F as well as the admission of the Respondent’s witness in court are weightier than asterisk as they are hard and cold verifiable facts. Counsel argued that the trial court did not even consider these exhibits before making Asterisk its preference. The two most distinguishing characteristics of Combined Transport Carriage from Port to Port Carriage is that the former features Door to Door service through at-least two modes of transport. The carrier must not only discharge the goods ex the carrying ship, carrier must deliver the goods to the cargo interest, unlike in Port to Port where as in this case the responsibility of the carrier ends with the discharge of the goods ex the carrying vessel.
Counsel submitted that discharge in shipping parlance with regards to a ship means “Any release from a ship including any escape, disposal, spilling, leaking, pumping, emitting or emptying” Encyclopedia of Ship Knowledge, 2007 by Jan Babicz at page 171. Delivery on the other hand is defined as “The formal act of transferring something, such as a deed; the giving or yielding possession or control of something to another”, Black’s Law Dictionary, 8th edition by Bryan A. Garner, P. 461.
Learned counsel submitted that the entry “APAPA LAGOS NIGERIA” on the face of Exhibit E shown in a box with the print PLACE OF DELIVERY in Asterisk is a repetition of the entry “APAPA LAGOS NIGERIA” shown in another box PORT OF DISCHARGE. The testimony of all the three witnesses in this case as well as Exhibits B and F also show that the Appellant’s two containers were discharged in “APAPA LAGOS NIGERIA” port. It is submitted that the evidence that the containers were discharged in Apapa Lagos Nigeria Port is so one-sided that the trial court needed not look elsewhere for a clue as to which of the contracts of carriage (Port to Port or Combined Transport) was performed.
It is submitted that there was no ambiguity created by exhibit E as to which of the contracts was intended using the same pliable document. It is further submitted that if the trial court felt that there was ambiguity in interpreting Exhibit E as to which of the contracts was intended using the same document, it should rightly have resolved the issue in favour of the Appellant relying on the contra proferentem rule of construction. In the case of SIMMONDS V COCKELL (1920) KB 843 at 845, Justice Roche held in a case which bordered on the construction of an ambiguous provision in an insurance policy that “It is a well-known principle of law that if the language of a warranty in a policy is ambiguous, it must be construed against the underwriter who has drawn the policy and has inserted the warranty for his own protection”.
Learned counsel urged us to find for the Appellant on Issue 1.
RESPONDENTS’ ARGUMENTS:
Learned counsel for the Respondents submitted with respect to issue 1 that a close look at the face of the Bill of Lading reveals that it is clear and succinct that the Contract between the parties is one of Combined Transport Bill of Lading. Counsel argued that the learned trial judge Olatoregun-Isola J. had rightly held:
“The document specified both the place of Discharge and the place of Delivery. In column for place of Delivery is an ASTERISK at the bottom of Exhibit E (the Bill of Lading) is explained thus; ‘Applicable when this document is used as a combined Transport Bill of Lading’ it is immaterial that the column for place of Discharge reads Apapa Lagos Nigeria. It is the duty and responsibility of the Plaintiff to show that the discharge and delivery means one and the same as the court cannot make agreements for parties or change agreement made by parties, parties are bound by the conditions and terms in a contract they freely entered into”.
Learned counsel further submitted that the asterisk can be seen in two places: the place of receipt of the goods and the place of Delivery of the goods. Counsel argued that if the Bill of Lading is a port to port Bill of Lading, it would never specify a place of delivery of the goods. This Bill specifies Apapa port as the Port of Discharge of the goods but goes further to specify a place of delivery – Apapa Lagos. In interpreting the face of the Bill of Lading, it is clear that where the carriage called for by the Bill of lading is a combined transport shipment, then the carrier undertakes responsibility from the place of receipt if named or from the port of Loading to the port of discharge or the place of delivery if named herein. (See Clause V (i) CARRIER’S RESPONSIBILITY – reverse side of the Bill of lading). The fact that the Defendant witness mistakenly said, under cross examination that the Bill of Lading is a Port to Port Bill does not make a Combined Transport Bill a Port to Port Bill. This is because a contract willingly entered by parties cannot be changed by mere assertion of ordinary witness or even a court of law. Therefore the case of SIMMOND V. COCKELL (1920) KB 843 @ 854 cited by the Appellant is not applicable in this case and cannot change contract made by the parties. Counsel urged us in the light of the above to look at the clear and unambiguous terms on the face of the Bill of Lading and resolve issue 1 in favour of the Respondents.
RESOLUTION OF ISSUE 1:
There is no difficulty whatever in the resolution of this issue. From all available evidence, the contract between the parties is a port to port shipping contract. The definition of a port to port shipping contract and a combined transport shipping contract as set out in the Appellant’s brief as summarized above are very clear and lucid. The Respondents I think agreed with the definition as they did not challenge same or offer any alternative. Their contention is that the entries in the bill of lading show that it is a combined transport shipping contract. What are these entries? The specification of Apapa port as the Port of Discharge of the goods and Apapa Lagos as the place of delivery of the goods. There was an asterisk in the column for delivery of the goods and the explanation at the bottom of the bill of lading is ‘Applicable when this document is used as a combined Transport Bill of Lading’. That was the only ground on which the learned trial Judge dubbed the contract between the parties a combined transport shipping contract. I agree with learned counsel for the Appellant that the Bill of Lading in this case, Exhibit E is pliable. It could be used either as a Port to Port Bill of Lading or alternatively as a Combined Transport Bill of Lading. Clause IV on the reverse side of the bill of lading Exhibit E set out the responsibilities of the carrier in a Port to Port Shipment while Clause V set out the responsibilities of the carrier in a combined transport shipment. Counsel is right that whichever of the two alternatives Exhibit E is used for, is a question of law and fact and not merely the entry of Apapa Lagos as the place of delivery, which entry is exactly the same as the one for Port of discharge and when there are no further particulars.

As stated by learned counsel for the Appellant, when it is a combined Transport Shipping contract, meaning the carriage of the goods from door to door, the Bill of Lading must show on its face mode of pre-carriage. It must also be shown on the face of the bill if any other mode of carriage took place in the country of export, before the carriage by sea. The Bill of Lading must show a specific address as place of final Delivery of the Goods other than a sea port in the country of import. In addition, there must be evidence available to a court seised with interpreting the status of the Bill of Lading contract, the mode of carriage of the Goods to the place of final Delivery by the carrier in the country of import. None of these were shown in the bill of lading. The contract was simply from the port of shipment to the port of discharge. The Respondents’ witness in cross-examination confirmed that the Bill of Lading is a Port to Port Bill. Learned counsel for the Respondent claimed the statement was a mistake. But it is in consonance with all the evidence adduced, and the contents of the bill itself. The courts are no robots. The learned trial Judge was in grave error to have reached the conclusion that the bill of lading was a combined Transport Bill of Lading simply because of the entry of Apapa Lagos as the place of delivery of the goods. Where in Apapa, Lagos are the goods supposed to be delivered? Even the incompleteness of the address of delivery is sufficient to raise doubts to any claim that the contract is a combined transport contract. Issue 1 is resolved in favour of the Appellant.
ISSUE 2:
Whether the learned trial judge properly evaluated the evidence adduced in the case before arriving at a conclusion that the contract of carriage entered between the Appellant and the Respondents is a Combined Transport Shipment contract. (Grounds 2 and 4).
APPELLANT’S ARGUMENTS:
Relying on the case of CHUKWU V OMEAKU (2009) ALL F. W. L. R. Part 499, page 697 at 720, learned counsel for the Appellant submitted that the trial court failed to properly evaluate the evidence placed before it hence it arrived at a decision which is perverse Counsel contended that the trial court failed to reckon with the probative value of Exhibits B and F, as well as the testimony (admission) of the only witness called by the Respondents, and failed to place the right construction on the contents of Exhibit E.
Counsel further submitted that Exhibit D – the Commercial Invoice was wrongfully over-looked by the trial court which held that because it was not issued by the Respondents, it had no probative value. Counsel argued that Exhibit D is very relevant as it clarifies the place of performance of the contract as evidenced by Exhibit E. It shows that the agreement between the Appellant and the supplier of the goods was performed when the supplier moved the goods to the Port of Loading, i.e. CHIWAN PORT, which is the place of reference in the agreement entered between the Appellant and the Respondents. Counsel submitted that Exhibit D is relevant under section 7 of the Evidence Act which provides that “Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places”. AKINGBADE V ELEMOSHO (1964) ALL N.L.R. 146 at pages 149 – 150.
Learned counsel referred to the case of NWAGA V REGD. TRUSTEES, RECREATION CLUB (2004) F. W. L. R. PT. 190, 1360 AT 1376 PARA E where it was held that the onus of proof is on the plaintiff (in this case the Appellant) to adduce credible evidence to prove has case before it becomes necessary for the defendant to call evidence to rebut the plaintiff’s assertions. Relying also on ORASANMI V IDOWU (1959) 4 FSC 40, counsel submitted that from the evidence led, the Appellant proved that its two containers were loaded onboard the Respondents ship from CHIWAN PORT and discharged on 21/1/2008 at APAPA LAGOS NIGERIA PORT (into Berth 16, Exhibit F). Counsel contended that Appellant had also shown through Exhibits F and B that his clearing agent took the final delivery of the two containers at Apapa port. Having adduced such evidence, counsel contended that the Appellant had discharged the burden of proof placed on it under our laws. He urged us to find for the Appellant on issue 2.
RESPONDENTS’ ARGUMENTS:
Learned counsel submitted on issue (ii) that the learned trial judge had properly and without equivocation evaluated the evidence adduced before arriving at the conclusion that the contract between the parties is a Combined Transport Bill of Lading. Learned counsel submitted that the submissions, arguments and cases referred to by the Appellant are not relevant. Counsel submitted that the actual and the main Contract is “Exhibit E” the Bill of Lading which is relevant to the facts in issue and that the trial judge is at liberty to examine same. Counsel referred to SECTION 6 OF THE EVIDENCE ACT which provides that “Evidence may be given in any suit or proceeding of the existence or non existence of every fact in issue and of such other facts as are hereinafter declared to be relevant and of no others;
(a)The Court may exclude evidence of facts which though relevant or deemed to be relevant to the issue appears to it to be too remote to be material in all the circumstances of the case….”
Counsel argued that the above section empowers the Court to exclude evidence whose materiality is weakened by its remoteness to acts sought to be established. AKERE V. ADESANYA (1993) 4 NWLR (Pt. 288) 484; FAWEHINMI V. NBA (NO 1) (2001) 50 WR 133. Counsel insisted that the evidence adduced before the trial judge was properly evaluated and that the trial Judge was right in his conclusion that the Bill of lading (Exhibit E) is a Combined Transport Bill of Lading. He urged us to so hold.
RESOLUTION OF ISSUE 2:
The law is that it is the prerogative of a trial Judge who sees and listens to witnesses to choose which to believe and ascribe probative value to his or her evidence. It is not the place of an appellate court to evaluate evidence which has already been evaluated by a trial court which has not been shown to be perverse: Abeke v The State (2007) 3 SC (Pt. 11) 105 Per Mukhtar JSC.

Where however the evaluation of the evidence by the trial court is perverse in the sense that it is not properly borne out by the evidence before him, an appellate court is competent to re-evaluate the evidence on the records before him and come to a proper decision: Iwuoha & Anor v Nipost Ltd & Anor (2003) 8 NWLR (Pt. 822) 308 per Tobi JSC. See also the case of CHUKWU V OMEAKU (2009) ALL F. W. L. R. Part 499, page 697 at 720, cited by learned counsel for the Appellant where the Supreme Court held:
“The evaluation of evidence is the primary function of a trial tribunal or court. Before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the evidence adduced by both parties on that imaginary scale; he will put the evidence by the Plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier ……by the quality or probative value………” See also the cases of OMOBORIOWO V AJASIN (1984) 1 SCNLR 108, FAGBENRO V AROBADI (2006) ALL FWLR (Part 310) 1575 at 1594, paras F – H.
The evaluation of the evidence led by the parties by the learned trial Judge as to whether the bill of lading is a combined transport bill of lading or a port to port bill is at pages 63 & 64 of the record. The learned trial Judge observed:
“I have examined the bill of lading Exhibit E. This is the contract between the parties. The invoice Exhibit D cannot be taken or said to be part of the terms of the contract between the parties. The Defendants did not issue the invoice Exhibit D. The court will therefore contend with Exhibit E, which is the document governing the transaction. Exhibit E is a bill of lading that can be used for either a Port to Port transaction or Combined Transport Shipment. That is on the very top front page of Exhibit E. What makes the difference is the content of the document itself. The document specified both the place of discharge and the place of delivery. In the column for place of delivery is an asterisk at the bottom of Exhibit E is explained thus:
“Applicable when this document is used as a Combined Transport Bill of Lading”
It is therefore immaterial that the column for place of discharge reads Apapa Lagos Nigeria and at the same time place of delivery reads Apapa Lagos Nigeria. It is the duty and responsibility of the Plaintiff to show that discharge and delivery means one and the same as the court cannot make agreements for parties or change agreements made by parties.

Parties are bound by the conditions and terms in a contract they freely entered into. The meaning to be placed on a contract is that which is the plain clear and obvious result of the terms used. A bill of lading contains the contractual terms between the parties and therefore binding on them. See Nika Fishing Company Limited v Lavina Corp. (2008) All FWLR (Pt. 437)1. I have no doubt that within the contemplation of Exhibit E, this is a combined Bill of Lading or Transport Shipment.”
This evaluation, is without doubt but with due respect to the learned trial Judge perverse. The learned Judge noted that the bill of lading Exhibit E can be used both for Port to Port Contract and for combined transport shipment. He noted further that it depends on the contents of the bill. He noted that the columns for place of discharge and place of delivery contained exactly the same information. This, to my mind immediately rings the bell that further inquiry needed to be carried out to resolve the obvious error. If the information in the column for place of delivery was different from the information for place of discharge and contained full details as to place of delivery, the learned Judge would have been right in his contention that the meaning to be placed on a contract is that which is the plain clear and obvious result of the terms used. Here, the terms were not plain, clear or obvious. When an ambiguity exists in a contract as in the instant case, the court is permitted to use rules of construction and evidence of prior and contemporaneous transactions and other extrinsic evidence adduced by the parties in ascertaining the true meaning of the contract. The Appellant referred the learned Judge to the invoice Exhibit D which was the agreement between the Appellant and his supplier to deliver the goods to the port of loading CHIWAN PORT which is the place of reference in the agreement between the Appellant and the Respondents. It is a contemporaneous transaction admissible under Section 7 of the Evidence Act. The learned Judge would not consider it. He dismissed it on the ground that the exhibit was not issued by the Respondent. The Appellant adduced credible evidence that his two containers were loaded on board the Respondents’ ship from Chiwan Port and discharged on 21/1/08 at Apapa Lagos Nigeria Port into Berth 16, Exhibit F. The Appellant also adduced evidence that delivery was taken from the Apapa Port by his clearing agent as shown in Exhibits F and B completing the sequence of Port to Port Shipping Agreement. These pieces of evidence were not considered by the trial Judge. Even the sole witness called by the Respondent confirmed in cross-examination that it was a Port to Port Shipping Agreement. The learned Judge ignored this in his evaluation of the evidence choosing to stick to the very obvious error in the bill of Laden Exhibit E by which he came to the erroneous conclusion that the contract is one of combined Transport Shipment when there was absolutely nothing in the face of the bill to support such contract – no details of where the goods were picked up by the Respondent, other than from the Chiwan Port; no details of where the Respondent was to deliver the goods, other than the Port in Nigeria – all pointing to Port to Port Shipping contact. To make matters worse, the learned trial Judge from the evidence knew that the Respondent was bent on dubbing the contract one of Combined Transport Shipment in order to take advantage of Clause Vi (9) of Exhibit E (Bill of Lading) on time bar. The learned Judge on this score ought to have applied the contra proferenten rule of construction as urged by the Appellant and upheld in the case of Simmonds v Cockell (supra). The entries in the Bill of Laden (Exhibit E) being ambiguous ought to be construed against the Respondent who made the entries for their protection.
My conclusion therefore is that the evaluation of the evidence by the learned trial Judge was perverse. This court has the right to evaluate the evidence based on the overwhelming facts adduced by the Appellants in the record of proceedings already set out above. I find therefore that the contract was a Port to Port Shipping agreement. Issue 2 is resolved in favour of the Appellant.
Issue 3:
Whether the provisions of the bill of lading (Exhibit E) on Time Bar applied to the carriage contract between the Appellants and the Respondents. (Ground 3).
Appellants arguments:
We submit that the provisions of Time Bar in Exhibit F under Clause VI (9) do not apply to the contract of carriage between the Appellant and the Respondents and that the trial court wrongly applied those provisions in this case. The Time Bar provision reads:
“Where the carriage called for by this Bill of Lading is a combined transport shipment and when the provisions of the international convention or of the National Law applicable to the non maritime part of the carriage by virtue of the Clause, Law and Jurisdiction of the face hereby do not determine a time bar, the carrier should be discharged of all liability unless suit is brought and notice thereof given to the carrier within 9 months after the delivery of the goods or the date when the goods should have been delivered”.
For the provisions of Clause VI (9) of Exhibit F to apply, the following situations must ALL obtain.
1) The carriage called for must be Combined Transport Shipment;
2) There must be a non-maritime part of the carriage
3) The provisions of International Convention or of the national law applicable to the non-maritime part of the carriage do not determine a time bar
4) The goods must have been delivered by the carrier.
Counsel submitted that the above situations numbered 1 – 4 do not apply in this case, for the following reasons already argued under Issues 1 and 2:
1) This is not a combined transport shipment
2) There wasn’t a non-maritime leg or part of the carriage, e.g. rail or road part and since there was none of such, there was no international or local legal provisions on time bar to apply.
3) From evidence available, carriers (Respondents) only discharged the Appellants at the Apapa Lagos Nigeria Port; they did not deliver the containers to the Appellant, the Appellant’s clearing agent did, Exhibit B, page 2 paragraph 1.
Counsel submitted that the trial court justified its application of the Time Bar provisions in Exhibit F to this case by erroneously relying on provisions of section 18(1) of the Admiralty Jurisdiction Act, CAP A5 Laws of the Federation of Nigeria 2004 (“AJA”) which provides:
“18(1) A Proceeding may be brought under this Act on a maritime claim or on a claim on a maritime lien or other charge, at any time before the end of – (a) the limitation period that would have been applicable to the claim if a proceeding on the claim had been brought otherwise than under this Act; or (b) if no proceeding on the claim could have been so brought a period of 3 years after the cause of action arose. (2) The provisions of subsection (1) of this section shall not apply if a limitation period is fixed in relation to the claim by any enactment or law.”
The trial court erroneously concluded that the claim having been brought outside 9 months but within 12 months was time barred going by the provisions of Exhibit F and section 18 (1) of the AJA.
Learned counsel submitted that the error of the trial court stems from its belief that the claim constituted herein arose as could be envisaged by Exhibit F (Time Bar Clause) from a non-maritime part of the voyage, under a Combined Transport Shipment. Counsel argued that the claim constituted herein arose as a result of damage done during the only voyage of this carriage i.e. the sea voyage, having started from seaport in CHIWAN and ended at sea in APAPA LAGOS NIGERIA Port.
In conclusion counsel submitted that both the Time Bar provision in Exhibit F and section 18(1) of AJA are not applicable to this suit as constituted.
AS AN ALTERNATIVE ARGUMENT to the inapplicability of the time bar provisions of Exhibit F and section 18(1) of AJA to this case counsel submitted that in the unlikely event that the court over-rules his arguments in this regard, he prays the court to hold that the trial court failed to advert to the provisions of sub-section 2 of section 18 which makes provisions of section 1 thereof inapplicable in the face of extant provisions of Article III Rule 6 of Nigerian Carriage of Goods by Sea Act (“COGSA”) CAP C2, LFN 2004 which endows receiver of goods with the right to bring legal action against maritime cargo carrier of in-ward bound cargo, within 12 months after the delivery of the cargo or the date when the goods should have been delivered.
Counsel submitted that it has been stated time without number that the provisions of COGSA on time bar do not allow parties to contract outside it. He urged the court to find for the Appellant on Issue No. 3.
RESPONDENTS ARGUMENTS:
Learned counsel for the Respondents on this issue submitted that in determining whether an action is statute barred or not, the most crucial consideration is when the cause of action arose. Counsel argued that a cause of action arises the moment a wrong is done to the Appellant by the Respondents. Limitation of action is determined by looking at the writ of summons or statement of claim alleging when the wrong was committed which gave the Appellant the cause of action and by comparing the date on which the writ of summons was filed: MRS. O. ADEKOYA V. FEDERAL HOUSING AUTHORITY (2008) MJSC 66 @ 68 R. 5; EGBE V. THE HON. JUSTICE ADEFARASIN. (1987) 1 NWLR (Pt. 47) 1. Learned counsel argued that in the instant case, the Respondents informed the Appellant of the flood incident vide a letter dated 22nd January, 2008; that the Container in question was unstuffed on the 21st of February, 2008 but that this suit was instituted on the 11th of December, 2008. Counsel submitted that this suit on the strength of the above it TIME BARRED. Counsel further submitted that Section 18(1) (a) of the Admiralty Jurisdiction Act CAP. 5 Laws of the Federation of Nigeria 2004 (“AJA”) provides thus:
“A proceeding may be brought under this Act on a maritime claim or on a maritime lien or other charge, at any time before the end of – (a) the limitation period that would have been applicable to the claim if a proceeding on a claim had been brought otherwise than under this Act”.
Counsel contended that on the basis of the above provision and clause VI (9) of the bill of lading “exhibit E” already set out above, that the suit is time barred.
Learned counsel submitted that based on the above arguments, that the contention of the Appellant that the Bill of Lading was not a Combined Transport Bill of Lading should be discountenanced. He urged the court to find for the respondents by holding that this suit is time barred and to dismiss this appeal.
RESOLUTION OF ISSUE 3:
It is not in contention here that this suit was filed on the 11th of December, 2008 (within 12 months but after 9 months from the time the cause of action arose). I have already in this judgment found for the Appellants that the shipping contract is one of port to port and not a Combined Transport Shipping Contract. I consequently agree with learned counsel for the Appellant that the provisions of Time Bar in Exhibit F under Clause VI (9) do not apply to the contract of carriage between the Appellant and the Respondents and that the trial court wrongly applied those provisions in this case. The provisions of section 18(1) of the Admiralty Jurisdiction Act, CAP A5 Laws of the Federation of Nigeria 2004 (“AJA”) which the learned trial Judge also relied on are inapplicable. Under a Combined Transport Shipment, part of the voyage must be non maritime. No such non maritime voyage was involved in this case. The claim here as submitted by learned counsel for the Appellant arose as a result of damage done during the only voyage of this carriage i.e. the sea voyage, having started from seaport in CHIWAN and ended at sea in APAPA LAGOS NIGERIA Port. I agree with learned counsel that both the Time Bar provision in Exhibit F and section 18(1) of AJA are not applicable to this suit as constituted. Issue 3 is resolved in favour of the Appellants. It is needless considering the alternative argument that the provisions of sub-section 2 of section 18 AJA which makes provisions of section 1 thereof inapplicable in the face of extant provisions of Article III Rule 6 of Nigerian Carriage of Goods by Sea Act (“COGSA”) CAP C2, LFN 2004. The relevant provision endows receiver of goods with the right to bring legal action against maritime cargo carrier of in-ward bound cargo, within 12 months after the delivery of the cargo or the date when the goods should have been delivered. But by Section 2 COGSA, it appears the Rules shall have effect in relation to and in connection with the carriage of goods by sea in ships carrying goods from any port in Nigeria to any other port whether in or outside Nigeria. This will appear to exclude ships coming into Nigerian ports from abroad.
Having resolved all the three issues in favour of the Appellant, I hold that the appeal has merit. It is hereby allowed. The judgment of Olatoregun-Isola J. of the Federal High Court, Lagos Division in suit No. FHC/L/CS/5547/08 delivered on the 9th day of July, 2010 is set aside. In its place, the suit is remitted back to the Chief Judge of the Federal High Court for assignment to another Judge other than Olatoregun-Isola J. for trial on the merits. Cost is assessed at N100,000.00 in favour of the Appellant.

CHIMA CENTUS NWEZE, J.C.A.: I had the advantage of reading the draft of the leading judgment which my Lord Iyizoba JCA just delivered now. I agree that this appeal is meritorious. I, too, accordingly enter an order allowing it. I abide by the consequential orders in the leading judgment.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I had the honour of reading in advance the judgment prepared by my learned brother, Iyizoba, J.C.A., with which I agree and adopt as my judgment with nothing to add.

Appearances

Osuala E. Nwagbara Esq.For Appellant

AND

Edmund Amadi Esq.For Respondent