Asiatic Shipping Services Inc & Anor V. Frigoglass Industries (Nig) Ltd & Anor (2016) LLJR-CA

LawGlobal-Hub Lead Judgment Report

CHINWE EUGENIA IYIZOBA, J.C.A.

The Respondents herein as Claimants instituted this suit at the lower Court by a Writ of Summons and Statement of Claim dated 10/8/07: wherein they claimed from eight Defendants among who were the Appellants herein as follows:
[a] The sum of N39,502,871.70 being damages arising from loss of and/or damage to the Respondents? cargo, which was sustained by reason of the Appellants breach of contract and/or duty and/or negligence during the carriage of the Respondents? cargo on board the ships – MV KEDUNG MAS, MV KANAL MASS and MV GREAT BLOSSOM, during voyage from Jakarta Indonesia to Lagos Nigeria.
[b] 10% interest on the sum of 39,502,871.70
[c] Costs.

The Respondents later discontinued the suit against six of the defendants leaving the 7th and 8th defendants, (Appellants herein) who as defendants filed their Statement of Defence dated 12/12/07 praying that the suit be dismissed against them on the ground that the Respondents? Statement of Claim disclosed no cause of action against them; further that they are not necessary parties to the suit because the 1st

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Appellant was neither the Carrier nor the Owner of the vessel in which the Respondents? goods were carried and that the alleged act, neglect, omission and/or commission the Respondents complained of took place outside Nigeria and that the 2nd Appellant was only an Agent of a disclosed Principal and never entered into any contract of carriage or bailment with the Respondents.

In proof of their claims the Respondents called two witnesses and tendered Exhibits ” A-E” while the Appellants on their part called one witness and tendered Exhibits “DF”, “DF 1” and ?G?

At the conclusion of trial, the lower Court on 6/10/09 entered judgment for the Respondents against the Appellants in terms of all the reliefs claimed. The Appellants being dissatisfied with the judgment appealed by Notice of Appeal dated 27/10/09 at pages 149-152 of the Record of Appeal containing three grounds of appeal .

?The parties filed and exchanged briefs of argument. The Appellant?s brief was settled by Emmanuel Achukwu Esq. Therein; out of the three grounds of appeal he formulated a sole issue for determination as follows:
“Whether upon a Proper

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consideration of the facts and evidence adduced before it, and the law applicable, the trial Court was right in holding the 2nd Appellant liable for the alleged damage to the Respondents, goods.?

The Respondents? brief was settled by C. A. Candide-Johnson SAN. In his brief , he adopted the sole issue formulated by the Appellant.
ARGUMENTS ON THE SOLE ISSUE
“whether upon a proper consideration of the facts and evidence adduced before it, and the law applicable, the trial Court was right in holding the 2nd Appellant liable for the alleged damage to the Respondents’ goods.?
Appellants? arguments:
Learned counsel for the Appellant in his brief submitted that the learned trial judge erred in holding the 2nd Appellant liable for the damage to the Respondent?s containers because the damage occurred outside Nigeria. Counsel submitted that the 2nd Appellant (8th defendant) who was based in Nigeria was the local agent of the owners of the vessel and cannot be held liable for damage that occurred in the High Seas, outside the shores of Nigeria. Counsel argued that as an agent of a disclosed principal , that it is

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wrong for the learned trial judge to hold the 2nd Appellant liable for the damage to the Respondents’ goods relying on Section 16(3) of the Admiralty Jurisdiction Act 1991 which has created an exception to the general principle of law that an agent is not vicariously liable for the default of his principal. counsel submitted that it is not in dispute from the pleadings and evidence led that the five containers Nos. CAXU988791-8, CAXU498348-3, TEXU521036-0, GESU411207-1 and TEXU512272-0 arrived Nigeria damaged. The evidence was that they were scattered all over like an explosion in the high sea. (See evidence of PW1 and Exhibit C9 at page 75 of the Record of Appeal). Counsel submitted that a report of the joint inspection of the damaged containers on arrival in Nigeria was submitted to the 2nd Appellant’s principal in Malaysia confirming that the damage occurred during trans-shipment from the original vessels, NV “Keclung Mas,, and MV “Kanal Mas” to the second vessel MV “Great Blossom,, of port Klang which finally discharged the entire consignment of Apapa port in the damaged condition. Counsel submitted that PW1 and DW1 testified that the 2nd Appellant was

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