Broadline Enterprises Ltd. V. Monterey Maritime Corporation & Anor (1995)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

By a writ of summons filed on the 31st March, 1987 in the Federal High Court of Nigeria, Lagos, the plaintiff, who is now appellant instituted an action against the defendants, now respondents, claiming as subsequently amended as follows:-

“(i) The price (C & F) of 3,434 bags of sugar at U.S. $55.5 per bag…………$190.587 .00

(ii) General Damages……..N25,000.00

(iii) Interest at 10% per annum from the date of Writ until judgment and thereafter at 5% per annum until judgment debt is finally liquidated.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged.

The plaintiff’s case, put shortly, is that on or about the 29th July, 1981, 100,000 bags of white crystal sugar were entrusted to the defendants for shipment from Rotterdam to Apapa, Lagos and for delivery at Apapa to the plaintiff for valuable consideration. The plaintiff company which claimed to be the importer of the goods stated that the defendants, in breach of their duty of care as common carriers and bailees, failed to deliver a total of 3,434 bags out of the said consignment of 100,000 bags of sugar to the plaintiff. Inspite of repeated demands, the defendants had failed and/or refused to deliver the said 3,434 bags of sugar to the plaintiff hence this action. The plaintiff thus claimed against the defendants jointly and severally for breach of contract and in negligence as common carriers and bailees for reward for the non-delivery and/or loss of the said 3,434 bags of sugar. Testifying for the plaintiff company, P.W.1 and P. W.2 gave ample evidence in line with the averments in the plaintiff’s Statement of Claim. They tendered various documents in support of the plaintiff’s case, inclusive of ten invoices in respect of the goods, Exhibits A1-A 10 and the relevant Bills of Lading, Exhibits B1 – B10. They claimed that the 100,000 bags of sugar belonged to the plaintiff but that they were short-delivered to the plaintiff by 3,434 bags by the defendants who were bailees of the entire consignment. The alleged short delivery of the said 3,434 bags was further confirmed by the Nigerian Ports Authority report, Exhibit C. The price (C & F) of each bag of the said sugar was stated to be U.S. $55.5 and the consignment was carried by the defendants for reward. They had, despite repeated demands, failed to deliver the missing bags of sugar to the plaintiff company or pay their value.

It must be specially noted that none of the above only two witnesses who testified on behalf of the plaintiff before the trial court was cross-examined by the defendants.

At the close of the case for the plaintiff, learned counsel for the defendants indicated that he did not intend to call any evidence. Accordingly, he rested his defence with the evidence led on behalf of the plaintiff.

Learned plaintiff’s counsel at this stage indicated to the trial court as “We are abandoning claim on bills of lading, that is, for breach of contract. We only claim on negligence. Thus paragraph 14 of our Statement of Claim”

(Italics supplied for emphasis)

Both counsel thereupon addressed the court.

The learned trial Chief Judge. Belgore. C.J. at the conclusion of trial on the 20th February, 1987 found for the defendants and dismissed the plaintiff’s claims. Said the learned Chief Judge –

“The effect of the plaintiff abandonment of the issue of Bills of Lading is that he has abandoned his case. The evidence of the two witnesses he called relate to Bills of Lading or effect or result of them. If Bills of Lading are to be discountenanced, ipso facto the evidence relating to them cannot be considered because they cease to exist.