Abc Merchant Bank (Nigeria) Limited V. Panalpina World Transport (Nigeria) Limited (2004)

LawGlobal-Hub Lead Judgment Report

PIUS OLAYIWOLA ADEREMI, J.C.A.

The appeal in this matter is against the decision of the Federal High Court sitting in Lagos delivered on the 12th of February, 2002 dismissing the plaintiff’s claim. The appellant who was the plaintiff in the court below had claimed against the respondent who was the defendant in the court below the sum of N2,900,000.00 (two million, nine hundred thousand naira) being the value of the plaintiff’s goods kept in the custody of the defendant pursuant to a collateral management protocol of agreement dated the 6th day of March, 1991 and lost on 12th of May, 1994 by the conduct and/or negligence of the defendant together with consequential loss at the rate of 21% per annum from 12th of May, 1994 until the date of judgment and thereafter interest on the judgment debt at the rate of 6% per annum until final payment.

Pleadings, in terms of statement of claim and statement of defence were filed and exchanged between the parties. Both sides led evidence in proof of the averments in their respective pleadings. At the close of the evidence, with the leave of the court, both sides submitted written addresses. In a considered judgment delivered on 12th February, 2002, the trial Judge dismissed the plaintiff’s suit in toto. Being dissatisfied with the decision, the plaintiff appealed therefrom upon a notice of appeal which carries eight grounds of appeal.

Distilled from the said grounds of appeal for determination by this court are five issues which as set out in the appellant’s brief of argument are in the following terms:

(1) Whether upon the undisputed facts the lower court was correct in coming to the conclusion that the respondent has discharged its duty to establish that it was not negligent for loss of the goods entrusted to it.

(2) Whether the respondent can set up the title of the judgment creditor in suit No. LD/94/91 as a defence to the appellant’s claim against the respondent for loss of the goods entrusted to the respondent.

(3) Whether the lower court was justified in its conclusion that the goods were forcibly taken away by the bailiff and policemen in execution of suit No.LD/94/91, and if the answer is in the negative whether the lower court should have held that the goods were wrongfully released by the respondent.

(4) Whether the lower court correctly placed the burden of proof of the case of each party having regard to the pleadings filed and evidence adduced at the trial.

(5) Whether the lower court was right to have failed to make any award at all for loss of the goods while they were under the custody of the respondent and for consequential loss.

For their part the respondent has raised only two issues for determination which as contained in their brief are as follows:
(1) Whether in the light of the uncontroverted evidence before the court the learned trial Judge held rightly that the goods warehoused were forcibly removed by the court bailiffs and policemen and thus not wrongfully released by the respondent as claimed by the appellant.

(2) Whether the appellant proved specifically its claim for the sum of N2,900,000.00 as damages for loss of the warehoused goods.

When this appeal came before us on the 3rd of March, 2001, Mr. Oladipo, learned counsel for the appellant, adopted his client’s brief of argument filed on the 7th of March, 2003 and the reply brief filed on the 10th of November, 2003 and urged that the appeal be allowed. Mr. Opasanya learned counsel for the respondent also adopted his client’s brief filed on 10th of April, 2003 and urged that the appeal be dismissed.

I have had a careful examination of all the issues raised for determination by the parties in this appeal. I am of the view that issues Nos. 1, 2, 3 and 4 on the appellant’s brief of argument can be taken together with issue No.1 on the respondent’s brief. Issue No. 5 on the appellant’s brief can be taken together with issue No.2 on the respondent’s brief. I shall treat the issues in the order in which I have set them out supra. After reviewing the evidence led by the parties and the findings made thereon, the appellant in its brief of argument submitted that in setting of the defence that the goods were carted away by the bailiff of the High Court of Lagos in execution of the judgment in suit No. LD/94/91 between Fidelity Union Merchant Bank Limited and Najem Holdings Ltd., the respondent did not prove what reasonable steps it took to safe guard the goods during the execution and that in spite of those reasonable steps so taken by them the goods were removed.

In the absence of proof of the reasonable steps taken, the defence set up cannot avail the defendant/respondent; they have not shown any reasonable step taken by them for the protection of goods in their possession; it was submitted while reliance was placed on the decision in Holts Transport Ltd. v. K. Chellarams & Sons (Nig.) Ltd. (1973) 1 All NLR (Pt.1) 202. The court below, it was submitted, was wrong in holding that the forcible removal of the goods was an act beyond the control and management of the respondent.