A.O. Mbakwe V. R.M.S. Africa (Rhein Naas) & Anor (2000)
LawGlobal-Hub Lead Judgment Report
NSOFOR, J.C.A.
By a writ of summons in suit No. FHC/75/92, the plaintiff had claimed the sum of N2,000,000.00 as special and general damages for breach of contract in that the defendants contracted to carry from Iceland to Port Harcourt 1,980 (one thousand, nine hundred and eighty) bags of cod heads with collarbone/backbone in 5 containers on board their ship the “BACO LINER 1” and, to deliver the same in good/sound condition to the plaintiff at Port Harcourt but the defendants have failed, refused and/or neglected to deliver the said goods to the plaintiff.
Alternatively the plaintiff claimed from the defendants jointly and severally N2,500,000.00 (Two million, five hundred thousand Naira) as general damages for negligence.
Following an order for written pleadings, the plaintiff filed a statement of claim dated the 19th March, 1993. Paragraphs 4, 5, 7, 8, 9 10 and 12 thereof forming the principal allegations of facts reads as follows.
“4. The plaintiff ordered from Norfish Limited in Iceland a total of 1,980 (one thousand, nine hundred and eighty) bags of assorted fish heads of the value of USD 147.060. The suppliers sent to the plaintiff Profoma Invoice dated 5/2/92; Import Duty Report (IDR) and Clear Report of Findings (CRF) dated 12/6/92. The consignment was confirmed by Galaxy Enterprises Inc. and the plaintiff would rely on their Invoices and correspondences.
- The said goods were to be taken delivery of at Port Harcourt within jurisdiction. On the ship’s arrival at Onne Port Harcourt in July, 1992 it was discovered that some of the bags of fish heads were wet and/rotten.
- As a result of the condition of the said bags of fish heads the defendants called for a survey of the consignment on 28/7/92 and SGS Inspection Service (Nigeria) Limited conducted a survey of the consignment in the presence of the parties hereto at the Federal Lighter Terminal, Onne, Port Harcourt and issued a Survey Report No. SGS/SUPT/LOO/17702/JO dated 28/8/92. The plaintiff shall found on the said survey report at the hearing of the above suit.
9(a) By the said survey, it was discovered that out of a total of 1,980 jute bags of fish heads 1207 were in sound condition whilst 773 (seven hundred and seventy three) were wet and/or rotten and infested with in numeral maggots and putrid Odour oozed therefrom. It was further discovered that one of the containers had a hole on its side whilst three of the containers had weak rubbers at the doors through which water sipped onto them from some stagnant water at the floor of the containers.
9(b) From the survey report it became quite clear that some of the containers used to carry the fish heads were too old and unseaworthy to the knowledge of the defendants. As a result of the Odour emitted by the rotten fish heads, the Ministry of Health, Abia State of Nigeria inspected the plaintiff’s warehouse at Aba, found that 773 bags of the fish heads were decayed/rotten, infested with maggots and weevils due to contact with water and thereby declared the 773 bags of the fish-heads unwholesome and unfit for human consumption. The 773 bags of fish heads were therefore publicly destroyed by burning. The loss was total. The plaintiff will at the trial of the above action rely on the certificate of condemnation dated 26th August, 1992 issued by the Ministry of Health, and signed by the Director of Public Health, Mr. Nwobilo.
9(c) The plaintiff sold each sound bag of the fish-heads at N2050 (two thousand and fifty naira).
- The plaintiff paid to the Customs and Excise Nigeria, per payment schedule dated 15/7/92 the sum of N137,935.49 as Customs Duty. The plaintiff also paid to SGS Inspection Service (Nigeria) Limited the sum of N5,000 for the survey of the consignment and reporting. By another letter dated 18/8/92 Customs and Excise gave plaintiff Notice of under payment of Import Duty with the result that an additional import duty paid by the plaintiff on the consignment was N140,299.00 thereby making a total of N278,234.57.
- WHEREOF the plaintiff has been damnified and has suffered tremendous loss and damage and claims from the defendants jointly and severally as follows:
N2,000,000.00 (two million Naira) being special and general damages for breach of contract in that the defendants contracted with the plaintiff to carry from Iceland to Port Harcourt 1,980 (one thousand nine hundred and eighty) bags of assorted fish-heads with collarbone/backbone in 5 containers on board their ship the “BACO LINER 1″ and deliver the same in good/sound condition to the plaintiff at Port Harcourt but the defendants have failed, refused and/or neglected to deliver the said goods to Port Harcourt as aforesaid in good/sound condition.
Particular of Special Damage:
(a) 773 (seven hundred and seventy three) bags of the said fish-heads are wet and rotten and of no value declared unwholesome and destroyed by burning publicly at the market price in August 1992 at N2050.00 (two thousand and fifty Naira) per bag……… N1,584,650.00
(b) Custom Duty paid: vide payment schedule dated
17/7/92 and Additional payment………. N278,234.57
(c) Survey Fees: vide page 3 No.11 of
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