Brawal Shipping Nigeria Ltd V. Ometraco International Ltd (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HUSSEIN MUKHTAR, J.C.A. (Delivering the Leading Judgment)

The appellant herein was sued at the Federal High Court (the court below) by the respondent (plaintiff on the 28th February, 2003 claiming the following reliefs:

“The sum of N24,050,786.00 (Twenty Four Million, Fifty Thousand, Seven Hundred and Eighty Six Naira only) being the market value of the various automotive spare parts as at the time they were stolen from the defendant’s jetty as highlighted in the annexure to the plaintiff’s letter of 3rd April, 2003 and interest of 21% per annum on the said sum from the 18th day of March, 2003 when the container ought to have been cleared until judgment and 7% interest thereafter until the said sum is finally liquidated.

Or

ALTERNATIVELY the sum of Euro 113,868.33 (One Hundred and Thirteen Thousand, Eight Hundred and Sixty Eight Euro Thirty Three Cent only) being the cost of the missing items as itemized in the plaintiff’s letter of 3rd April, 2003 and the annexure containing the list and cost of the missing items attached thereto and interest of 21% per annum on the said sum from the 18m day of March, 2003 when the container ought to have been cleared until judgment and 7% interest thereafter until the said sum is liquidated.”

The respondent imported some automobile spares which arrived Lagos in a container at the appellant’s jetty on 28th February, 2003 and was scheduled for inspection by the Nigeria Customs Service on the 18th March, 2003 when it was discovered that the container had been burgled and several items therein were stolen. The respondent notified both the appellant and the carrier Messrs Seereederei Baco Liner G.B.H., a commissioned SGS Inspection services (hereinafter referred to as “SGS”), which inspected the burgled container and issued a report to the respondent. The respondent’s claim against the appellant was founded on the SGS report.

After hearing the case, the court below delivered a judgment on the 19th June, 2006 in favour of the respondent (pp. 331-360 of the record). The appellant being dissatisfied with the judgment appealed against it by filing a notice of appeal dated and filed on 4th September, 2006 on the following eight grounds:

“1. The learned trial judge erred in law when, after the appellant’s counsel had submitted the appellant’s written address, he granted the respondent’s application amending the respondent’s pleading to include a claim in the alternative (monetary sum of Euro 113,868.33) to be in line with the evidence led at the trial.

2. The learned trial judge erred in law when he held that the defendant/appellant was negligent in handling the plaintiff/respondent’s consignment in the appellant’s custody.
3. The learned trial judge erred in law when he raised suo motu the issue of agency under section 16 of the Admiralty Jurisdiction Act and held that in this case the appellant was liable under that section of the law.
4. The learned trial judge erred in law when he held that the appellant had proved its loss in the form of alternative claim in this case.
5. The learned trial judge erred in law when he held that exhibits H2, M and P were not the right documents to be considered in determining the cost of the respondent imports, but that the right documents to be considered for that Purpose were exhibits A1-A5 and N.
6. The learned trial judge erred in law when he failed to consider the appellant’s reply address duly filed in answer to new issues raised in the respondent’s written address.
7. The learned trial judge erred in law when he awarded interest to the respondent at 21% per annum from 28th February, 2003 till 10th February, 2004 and 6% per annum from 10th February, 2004 till 19th June, 2006.
8. The decision is against the weight of evidence.”

From the above eight grounds, six issues were formulated for determination by the appellant, while the respondent formulated five but similar issues. The appellant’s six issues which have been tied to the various grounds of appeal and which are adopted for the determination of this appeal are as follows:

“1. Considering the stage of the case and the evidence led at the trial whether the learned trial judge was right to have granted the application of the respondent to amend its pleadings to bring in alternative claim.

2. Whether the appellant was negligent in handling the respondent’s consignment in the appellant’s custody.
3. Considering his preference for exhibits A1 – A5 and N, to exhibits H2, M and P, whether the learned trial judge properly evaluated the evidence placed before him in arriving at the cost of the respondent’s imports.
4. Whether the failure of the learned trial judge to advert to and consider the appellant’s reply written address does not amount to denial of fair hearing and whether this failure has not resulted in injustice to the appellant.
5. Whether the learned trial judge was right to have held that the respondent proved its loss in the form of alternative claim.
6. Whether the learned trial judge was justified in awarding interest to the respondent at the rate and in the manner as he did in this case.”

Issue One

The learned counsel for the appellant Osuala E. Nwagbara, Esq contended that the learned trial judge was in error by granting the respondent’s application for amendtnent of the statement of claim to bring in an alternative claim in view of having been tendered in evidence. It was submitted that the court below had power to allow amendment of pleading at any stage before judgment. See Shell v. Amba (1999) SCNJ 152 at 160. He submitted that amendments are generally allowed by leave of court except where it over reaches the other party, and in this case the appellant was over reached by adding the alternative relief to the relief earlier sought for since no evidence was led by the respondent at the trial, in respect of the value of the goods in Euro. See George v Dominion Flour Mills Ltd (1963) 1 All NLR 71 at 78. It was contended the said exhibit ‘N’ was put in evidence by the appellant under cross examination for the purpose of showing contradictory figures in the quantify of the goods imported by the respondent. It was submitted that the amendment ought not have been allowed because it over reaches the appellant. The learned trial judge when allowing the amendment observed as follows:

“The plaintiff in this case seeks to amend the claim by adding an alternative claim in Euro, the cost price of the goods as against the market value earlier on pleaded.”

The appellant’s counsel argued that the value of the goods in Euro was neither pleaded nor was evidence led at the trial on the alternative prayers. It was further argued that even the Naira value that was pleaded was not supported by evidence adduced at the trial, and is consequently deemed abandoned. See Awogbade Light Industries Ltd v. Chinukwe (2004) All FWLR (pt.224) 943 at 995 para B. Exhibit N was not tendered in evidence to establish the cost of the respondent’s import. Rather the purpose of tendering exhibit N by the appellant through P.W.1 under cross examination was to show contradictory figures in the number of pallets imported by the respondent. While P.W.1 claimed that it was a container of 54 pallets, the same P.W.1 under cross examination said exhibit D showed it was 50 pallets, while exhibit N showed that the respondent imported 43 pallets. There was therefore no evidence in respect of the cost of the imported or stolen goods during the trial. The amendment, it was further submitted, could only have been rightly granted if there was evidence given and placed before the court to establish the cost of the import. To the contrary, the PW.1 stated that he could not remember the cost of the goods imported by the respondent and that the cost is as stated in the invoices presented to the court. It was further submitted that this piece of evidence showed that the respondent relied on the invoices tendered as exhibits A1 to A5 and not exhibit N to prove the cost of the imported goods.