Federal Airports Authority Of Nig. V. Wamal Express Services [nig] Ltd (2011)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.S.C.

The plaintiff’s claim against the defendant at the Federal High Court (trial court) holden at Lagos is for:

1) the sum of $38,475.00 (Thirty Eight Thousand, Four Hundred and Seventy Five US Dollars)

2) interest on the said sum at the rate of 21% per annum compounded monthly from 26th May, 1994 until the entire debt is liquidated.

The salient facts giving rise to the above claim, according to the plaintiff, is that the plaintiff was established pursuant to the Federal Airport Authority of Nigeria Decree 1996. It manages and supervises, inter alia: all airports in Nigeria with offices in Lagos etc and has taken over all the assets and liabilities of the body previously known as the Nigerian Airports Authority. The defendant, the plaintiff averred, is a limited liability Company incorporated in Nigeria and has offices in Nigeria including Lagos. The defendant carries on the business of clearing, customs and shipping agents.

The plaintiff averred that it instructed the defendant to clear from the Apapa Port a consignment of thirty (30) electrical transformers shipped from Rotterdam and deliver same to it. Pursuant to this instruction, the defendant cleared the said consignment which consignment was securely enclosed in a container bearing a number TPHU 41079273 and an original seat number 002595. Upon arrival of the consignment, the defendant wrote to the plaintiff and notified it only of the allegedly brushed condition in which the consignment arrived, but did not mention anything about part of the consignment being missing. This was by its letter dated 25th May, 1993. on taking delivery of the said consignment from the defendant and after examination of same, the plaintiff discovered that five(5) of the 100KVA DYII/400v oil cooled, step down transformers valued then at US$38,475.00 (Thirty Eight Thousand, Four Hundred and Seventy Five US Dollars) were missing, The plaintiff promptly sought an explanation for the missing transformers from the defendant. The defendant sought to exculpate itself from liability by alleging that the consignment was delivered brushed, thus insinuating that the said consignment did not land intact but that the container housing the consignment was damaged.

Not satisfied with the above explanation, the plaintiff by a letter dated 11th June, 1993, wrote to the Nigerian Ports Plc to furnish it with the Delivery Condition Report to enable it verify the defendant’s explanation. The plaintiff instructed its solicitors to seek clarification from other organisations connected with the shipment of the said consignment. The various organisations replied that the said consignment landed and was delivered with its consignment of thirty (30) transformers intact and its seal unbroken. By its letter to the defendant of 23rd June, 1993, the plaintiff demanded for documents from the defendant to prove that the defendant was not liable for the allegedly missing transformers. The plaintiff insisted that the defendant is responsible/liable for the missing transformers and that it would have gained interest of at least 21% per annum compounded monthly on the sum claimed had the defendant paid same to it on or before 25th May, 1993 when this debt arose. The plaintiff averred finally that the defendant has no defence to this action.

Leave was granted to the defendant by the High Court to file its counter-affidavit out of time. The counter affidavit was indeed filed. In the counter affidavit, the defendant claimed that the container in which the transformers were loaded had been brushed (damaged) before it took delivery. It also claimed in the counter affidavit that when it invited one “Marine Cargo Superintendent”, it was he who discovered that 5 units of the transformers were missing. The defendant denied liability for the loss claiming that the brushing of the transformers had taken place before it took delivery and that it was as a result of the brushing that the electrical transformers may have become missing because of the nature of the container in which the goods were placed.

The suit before the trial court was initiated through the undefended list procedure vide particulars of claim filed on 18/3/97 claiming the value of five transformers which the defendant failed to deliver to the plaintiff. According to the plaintiff, facts deposed to in the affidavit supporting the particulars of claim clearly revealed that the respondent had no defence to the suit. The suit was placed on the undefended list by the trial court.

Based on his findings after having considered the affidavit evidence and the law, the learned trial judge entered judgment against the defendant and in favour of the plaintiff in the sum of US$39,475.00 (dollars) with interest there on at rate of 6% per annum from 26/5/98 until the entire judgment debt is liquidated or its equivalent at the Central Bank of Nigeria.

The defendant was unhappy with the trial court’s judgment and it appealed to the Court of Appeal. The plaintiff was also unhappy with the trial court’s judgment on the interest and as respondent at the court below, it cross-appealed. Both the Notice of the Main Appeal and that of the cross-appeal were subsequently amended. And, in addition to the Notice of Cross-appeal, the respondent at the court below filed a Notice of intention to rely upon a preliminary objection to the appeal.

On 2/12/02, the court below delivered its judgment upholding the appeal of the appellant in that court and dismissed the respondent’s cross-appeal.

Dissatisfied, the plaintiff/respondent and now appellant before this court, filed an appeal to this court vide Notice of Appeal of 27/2/03.

In this court, the parties filed and exchanged briefs of argument. In his brief of argument, learned counsel for the appellant formulated the following issues for our determination:-