Alhaji M. Balogun V. Panalpina World Transport (Nig.) Ltd. & Anor (1998)

LawGlobal-Hub Lead Judgment Report

    O. ONALAJA J.C.A

The Plaintiff now Appellant claimed by his particulars of claim in the Federal High Court Lagos against the Defendant referred to in this judgment on appeal as the 1st Respondent as follows:- THE PLAINTIFF’S CLAIM

“against the Defendant is for the sum of N75,900.00 (Seventy-five thousand Nine hundred Naira) being cost of one TOYOTA LITEACE BUS consigned to the Defendant for carriage to LAGOS as per BILL OF LADING NO.166 EX REPUBLICA DI GENOVA dated 21/11/89 and which Vessel landed at LAGOS on 6/12/89 without the said CARGO.

AND despite repeated demands the Defendant as the agent to the SHIP OWNERS has neglected or refused to deliver the said cargo or pay for same in lieu thereof.

The Plaintiff also claims interest on the said sum of N75,900.00 at 26% from 6/12/89 until payment or judgment.”

After service on Defendant/1st Respondent the appellant filed his statement of claim part of the pungent paragraphs are set down as follows-

1. The plaintiff is a Forwarding and Clearing Agent and is residing at 21 ADEKITAN STREET, MUSHIN, LAGOS STATE.
2. The Defendant is a registered company in Nigeria with its registered office at 4 CREEK ROAD, APAPA.
3. The Defendant is also the Agent in Nigeria to the owners of the vessel REPUBLICA DI GENOVA.
4. That the said Liteace Bus was consigned to the Plaintiff as per Bill of Lading No.166 of 21st November, 1989 on board the Vessel Republica di Genova.
5. That the Defendant as the Agent to the ship owners notified the plaintiff of the expected arrival: of the vessel Republica di Genova and in consequence of which the plaintiff prepared the necessary custom documents to clear the goods in advance.
6. That on the 6th of December, 1989 the vessel Republica di Genova duly arrived but without the Bus Toyota Liteace consigned to the plaintiff.
7. That the said vessel Republica di Genova was on straight voyage from Antwerp to Lagos without any intermediate stop before Lagos.
8. That non arrival of the Bus was immediately reported to the Defendant and the ships Landing Sheet was thoroughly examined and it was clearly shown that the bus was not off loaded.
9. Whereof the Plaintiff claims against the Defendant the value of the Bus which is 118,000.00 Belgium France or $5,600.00 and the freight charges of $500.00.
10. The Plaintiff also claim 50% of the cost of the Bus being duty now payable in Nigeria since the concession then in existence when the Bus was shipped had been withdrawn.
11. The Plaintiff also claim interest on the said sum with interest at 26% from 6/12/89 until payment or judgment.”

In the course of the proceedings Plaintiff/Appellant sought the joinder of the Owners of MV “REPUBLICA DI GENOVA” as 2nd Defendant and to effect service on the owners by substituted service through the 1st Defendant the agent in Nigeria of the owner of MV Republica di Genova. The two prayers after consideration were granted by the Federal High Court in Lagos. The Defendant/1st Respondent is now referred to as 1st Defendant/1st Respondent, whilst the said owners after the joinher is referred to in this judgment as 2nd Defendant/2nd Respondent.

By motion on notice 2nd Defendant/2nd Respondent without filing a statement of defence sought and was granted an order dismissing the action against it so far as it related to it on the grounds that Appellant’s cause of action was statute barred based on the Hague Rules of 1924 incorporated into the Bill of Lading on which the Appellant based his claim and or based on the CARRIAGE OF GOODS BY SEA ACT 1958 LAWS OF NIGERIA.

In the considered ruling after careful consideration of the arguments of the counsel to the parties and the applicable law and rules of court as against the 1st Respondent the, learned judge in his ruling held that:-

“At the conclusion of legal submission I dismissed in limine the suit as against the 1st Defendant on the ground that on the showing of the Plaintiff both in the particulars of claim and in paragraphs 3 and 6 of the statement of claim the plaintiff has sued the 1st Defendant as the agent of a known and disclosed principal therefore on the elementary principle of law of agency and as established in numerous judicial decisions at the Supreme Court and the Court of Appeal the agent incurred no liability in such circumstances either in contract or in tort. I therefore dismissed the claim against the 1st Defendant being nor a proper party to the suit.

With regard to the 2nd Defendant’s application that the suit is statute barred as against it therefore the cause of action has been extinguished. I am in complete agreement with that submission because as ADEMOLA JCA stated at pages 512-515 of ODUOLA & ORS. v. OGUNJOBI (1986) 2 NWLR pt.503 at 512-513 supra the important point is the time the applicants are coming into the suit and not the time the writ was issued. An application for joinder was made to join the 2nd defendant on 20/12/90 and the order was not made for joinder until 9/5/91. Therefore the time this suit was commenced against the 2nd, defendant is (sic) 9/5/91. The cause of action arose according to the averments in the statement of claim on 6/12/89 under the provisions of Article 3 rule 6 of the CARRIAGE OF GOODS BY SEA ACT 1924, this action ought to have been commenced within a period of 12 months from 6/12/89. I therefore agree that the action is statute barred as against the 2nd Defendant…

The Plaintiff has shown in paragraph 7 of the statement of claim that the cause of action arose on 6/12/89 (supra).

The 2nd Defendant was brought into the case on 9/5/91 more than twelve months after the cause of action accrued.. In the circumstances this suit is statute barred. It is accordingly hereby dismissed with N200.00 in favour of the 2nd Defendant. (sgd. ) G. A. A. T. JINADU, Judge,. 13/12/91. ”

Being dissatisfied with the said ruling Appellant lodged an appeal to this court through his notice of appeal wherein he formulated two grounds of appeal as under:-