Inland Containers (Nig.) Ltd. & Anor. V. Roger Colman Trading Company Nig. Ltd. (1997)

LawGlobal-Hub Lead Judgment Report

OGEBE, J.C.A.

The respondent company sued the appellants before the Kano High Court claiming the following reliefs in Para. 12 of the statement of claim:-

“a. The sum of $360.000 or the Naira equivalent of three thousand motorized brushes, plus interest at the prevailing bank interest rate of 21st (sic) until judgment is given in favour of the plaintiff.

b. The sum of $3,000 being cost of transportation of the said container from South-Korea to Nigeria.

c. Cost of this action,”

The appellants filed 2 separate statements of defence and the matter went into full trial. The respondent called 2 witnesses while the appellants called only one witness who gave evidence on behalf of the 1st appellant. The facts of the case are hardly disputed. The respondent imported a container to Nigeria from South Korea about January, 1993. No witness testified that he saw the contents of the container which was said to contain 3.000 motorized brushes. The invoiced cost of the imported goods was said to be $360,000 U.S. Dollars. The container was consigned to the depot of the 1st appellant in Kano. The container arrived in Lagos and was received by the 1st appellant. The 1st appellant engaged the services of the 2nd appellant to transport the container to Kano. While the container was in the custody of the 2nd appellant it was stolen. The bill of lading, Exh. 2, indicated that the gross weight of the container was 6,800 kg. The sample of the motorized brush is Exh. 9 and it weighed 5 kg.

The trial court. after taking addresses of the counsel on behalf of the parties gave judgment in favour of the respondent. Dissatisfied with that judgment the appellant filed a notice of appeal and later an amended notice of appeal containing 5 grounds of appeal. In accordance with the rules of this court, the appellants filed a brief of argument and identified 5 issues for determination as follows:-

“1. Did the plaintiff establish the contents of the container?

2. Did the plaintiff establish the value of the lost goods?
3. What was the effect of the indemnity (Exh. 8) on the liability of the first defendant.
4. Did the plaintiff establish the purchase of the goods by the payment of U.S. $360,000?
5. Did the plaintiff discharge the evidential burden placed on it by law?”

The respondent also filed a brief of argument and adopted the issues for determination formulated by the appellants.

Issues 1, 2 and 4 are virtually the same, simply put, they are asking whether or not the respondent established the contents of the container and their value in U.S. Dollars. They will therefore be taken together.

The learned counsel for the appellants submitted that the respondent failed to establish by admissible evidence the contents of the container. The documents tendered in an attempt to suggest the contents of the container, the bill of lading Exh. 2, the commercial invoice Exh. 6 and the packing list Exh. 7, do not establish the true contents of the container. Exhibits 6 and 7 were made by one Mr. D.W. Kim, President of the Hong Kim Corporation Ltd. of Seoul, South Korea, who was not called to testify and whose absence was in no way explained during the proceedings. Learned counsel submitted that those documents are not admissible under Section 91(1) of the Evidence Act. With regard to Exh. 2, the bill of lading, it was submitted that the contents were no more than hearsay evidence. It was forcefully argued that the value of the lost goods was not established. Only PW2 Alh. Surajo Ahmed gave evidence as to the value of the lost goods. His evidence according to the learned counsel for the appellant is not credible. Learned counsel pointed out that one sample of the motorized brush weighed 5 kg, therefore the 3,000 brushes said to be contained in the container would weigh 15,000kg as opposed to the weight of the container put at 6,800kg. This shows clearly that the container could not have carried 3,000 motorized brushes. From its weight it could have carried, if at all, 1,240 pieces which would cost 148,800 U.S. Dollars and not 360,000 U.S. Dollars.

In reply to these issues the learned counsel for the respondent submitted that the contents of the missing container were clearly established in Exhibits 2, 6 and 7 which were properly admitted under Section 91(1) of the Evidence Act. Learned counsel argued that the maker of Exhibits 6 and 7 D.W. Kim is resident in South Korea and this made it reasonably impracticable to secure his attendance as a witness. It was submitted further that the value of the goods in U.S. Dollars was established by Exh. 6 and the evidence of PW 2 which was not controverted.

It is not disputed that the respondent’s claim from the appellants was a claim for special damages for loss of its goods contracted to the appellants. It is trite law that special damages must be strictly proved and that burden is on the claimant to discharge. See the following cases:-Ijebu-Ode L.G. v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt.166) 136; Odiba v. Azege (1991) 7 NWLR (Pt.206) 724; Strabag Construction (Nig.) Ltd. v. Ogarekpe (1991) 1 NWLR (Pt.170) 733 and Sommer v. F.H.A. (1992) 1 NWLR (Pt.219) 548.

In this particular case, all that the respondent relied upon to prove the contents and the value of the goods lost are Exhibits 2, 6 and 7. The makers of these exhibits were not called to testify and no foundation whatsoever was laid as to why they were not called to testify.