Comet Shipping Agencies Nigeria Limited V. Babbit (Nigeria) Limited (2001)

LawGlobal-Hub Lead Judgment Report

SULEIMAN GALADIMA, J.C.A.

The appeal and cross-appeal in this matter arose from the decision of Ukeje J at the Lagos division of the Federal High Court, given on 20/6/97.

The respondent as plaintiff/claimed against the appellant at the lower court as follows:

(a) The sum of $40,605 (Forty Thousand, Six Hundred and Five United State Dollars) or Naira equivalent being the value of the seventeen cartons of steering dampers, shock absorbers, piston ring sets, piston and cylinder assy; lost by the defendants.

(b) N100,000.00 (One Hundred Thousand Naira) being general damages for the loss of the plaintiff’s goods which loss was occasioned by the negligence of the defendants.

(e) Interest on the composite sum at the rate of 21% per annum from the 14th of October, 1993, until judgment and thereafter at the rate of 6% per annum until the sum is paid.

(d) Costs.

The respondent’s case at the trial court was that the appellant was contractually obligated to it as bailee for reward to redeliver a consignment of 327 cartons of container No. IEAU 28 2803/0 and kept in the appellant’s custody. Further that beyond the contractual obligation, the appellant was under a duty of care to see that it was not negligent, in keeping the said goods. The respondent had contended that the appellant failed to meet its obligations under the contract. As a result of the appellant’s negligence in keeping the goods, 17 of the 327 cartons were lost.

Defence put up by the appellant to the above claim, was that it was entrusted with a container for safe keeping by the respondent, the contents of which it had no knowledge of nor examined prior to taking delivery of same. The appellant contended that it redelivered the said container in the condition in which it was received. That the missing cartons, were never in the container at the time the contract of storage was concluded.

Furthermore, the appellant in its defence states that it exercised all reasonable skill and care that an ordinary warehouseman would exercise whilst the goods were in its custody and thus, did discharge its duty of care towards the respondent. At the trial, a total of eight documents were tendered as exhibits from the bar by consent of the parties whilst the respondent and appellant called one witness each in proof of their case. At the close of the trial the learned trial Judge found in favour of the respondent and held that the container delivered to the appellant contained 327 cartons as evidenced by the bill of lading and found the appellant liable for the loss of 17 cartons. She therefore awarded US $5,000.00 as special damages, and N50,000.00 as general damages for the loss.

Dissatisfied with the judgment, the appellant appealed to this court on five grounds as amended. The respondent, on the other hand also filed a cross-appeal containing single ground.

The parties, in compliance with the rules of this court, through their respective learned Counsel filed and exchanged briefs of argument. The following five issues were distilled from the five grounds of appeal:

“1. Whether a Contract of Affreightment (Bill of Lading) binds a bailee as in this case who is not a party to the said contract?

2. Whether the learned trial Judge was right in holding that the evidence given by the defendant witness (DW1) was hearsay evidence?
3. Whether in the circumstances of this case the appellant was negligent in respect of the bailment entrusted into his care by the respondent?
4. Whether the learned trial Judge could legitimately award general damages for the respondent in the sum of N50,000 for loss suffered by the respondent on account of the appellant’s negligence, when she had earlier awarded the sum of $5,000.00 special damages for the same loss?
5. Whether there was sufficient evidence before the learned trial Judge to justify the award of US $5,000 as special damages?

The respondent however, formulated one issue for determination in his brief of argument and it reads thus: