Triana Limited v. Polymakers Limited (2023)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

SUNDAY AKINOLA AKINTAN, JCA (Delivering the leading judgment)

This is an appeal from the judgment delivered by Ayorinde, J. sitting at Ibadan High Court in Oyo State on 22nd June 1989 in suit No.1/706/86. The present respondent was the plaintiff while the appellant was the defendant.

The appellant company, Triana Limited, is a company incorporated in Nigeria with its head office in Apapa, Lagos and engaged in the business of shipping, clearing, forwarding and warehousing of goods for other companies.

The respondent, Polymakers Limited, is also a company incorporated in Nigeria and based in Ibadan. It carries on the business of production of bread wrapper for which it uses low density polythene (otherwise referred to as LDPE).

The plaintiff was expecting a consignment of LDPE in two containers due to arrive in Nigeria via Apapa port. It engaged the services of the defendant company for the purpose of clearing the consignment at Apapa port on arrival there and deliver them to the plaintiff at its Ibadan factory.

The goods arrivedApapa port on schedule and the defendant company cleared the goods at the port in accordance with the agreement it had with the plaintiff company. The carriage of the two containers was done for the defendant company by a third party engaged for that purpose by the defendant.

Each container contained 1280 bags of LDPE on arrival at Apapa port and up to the time they were loaded on the truck and the truck departed Apapa port for the Ibadan factory of the plaintiff company.

Evidence was led at the trial to the effect that when the consignment arrived at the port, they passed through all the necessary custom clearing stages along with the officials of the defendant company.

At the end of the clearing exercise the representative of the defendant company was said to have locked each of the two containers with padlocks provided by the agent of the defendant company and the vehicle then left the port premises.

The present dispute arose when the vehicle arrived at the Ibadan factory premises of the plaintiff company. There, it was discovered that the padlock on one of the containers was no longer there. It was replaced with wire used in holding the container doors together.

The contents of each of the two containers were counted by the agent of the plaintiff company in the presence of the driver of the vehicle. It was discovered that the contents of one of the containers, which arrived without the padlock, used in locking it, contained only 1017 bags instead of 1280 bags of LDPE.

It was 263 bags short. The delivery note was so endorsed and signed by the agent of the plaintiff and driver of the vehicle as agent of the defendant. The present claim was therefore filed to recover the cost of the 263 bags of LDPE short-delivered.

The plaintiff’s claim, as set out in paragraph 18 of the statement of claim is for N100,000 being special and general damages for loss suffered sometime in February, 1986 or thereabout for the short-delivery of 263 bags of LDPE being part of a consignment of 1280 such bags which the defendant contracted at Ibadan to deliver from Apapa port Lagos to the plaintiff’s factory at Ibadan. The plaintiff then gave a breakdown of its special damages.

The defendant filed its statement of defence and an amended statement of defence and counter-claim was later filed with leave of the court. The counter-claim was for refund of the defendant’s expenses incurred in clearing the goods and transporting them to the plaintiff’s premises in Ibadan which amounted to N7,958. The case thereafter went for trial before the learned Judge. The parties led evidence in support of their respective pleadings. At the conclusion of the proceedings, the learned trial Judge delivered his reserved judgment.