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Fasasi Adesanya (Trading Under The Name And Style Of Negro Commercial Agency) V Leigh Hoegh And Co. A/s (1968) LLJR-SC

Fasasi Adesanya (Trading Under The Name And Style Of Negro Commercial Agency) V Leigh Hoegh And Co. A/s (1968)

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This Is an appeal by the plaintiff against the decision of Adefarasin J. on the 23rd of March 1967 in the Lagos High Court in Suit LD/167/66 dismissing his claim with costs. The plaintiffs claim in his writ reads:-

“the plaintiff’s claim against the defendant is for the sum of three thousand pounds (£3,000) being special and general damages for the defendants’ failure to deliver at Lagos In apparent good order and condition the quantity of 557 bags of 1000 bags of Majestic potatoes consigned to the plaintiff under the bill of lading No. 13 of 19/3/65 per defendants’ ocean vessel Hoegh Aurore.

Particulars of damages

Value of 557 bags of Majestic potatoes

which were delivered rotten        £1,949.10s.0d.

Survey Report Fees    10s.10d.

Limited as per

Invoice No. 2650/B 10/65 of 12/4/65    £199.17s.2d


Brought Forward    £2,159.17s.2d

General Damages    £840.2s.10d


and the first three paragraphs of his statement of claim read:-

“1. On March 19th,1965, Messrs Awan Lee and Luba Company Ltd., through their agents, Messrs Turner Byme AND John Innes Limited caused a quantity of 1,000 bags of Majestic Potatoes with marks “N.C.A. Lagos 1/1000” to be shipped on board the defendant’s ocean vessel “Hoegh Aurore” at London.

2. The master of the said ocean vessel, as the agent of the defendants received the 1,000 bags of Majestic Potatoes to be carried to Lagos (Customs Wharf) and on demand of the shipper Issued a bill of lading No. 13, duly signed at London on the 19th day of March, 1965.

3. The plaintiff is the consignee of the 1,000 bags of Majestic Potatoes named in the bill of lading to whom the property in the goods therein mentioned passed by reason of such consignment.”

Now the facts in this appeal as found by the learned trial judge were that the plaintiff in Lagos arranged with Messrs. Awan Lee & Luba Company Ltd. in England through their agents Messrs. Turner Byrne & John Innes Ltd. to purchase 1,000 bags (50 tons) of Majestic Potatoes for £1,837.10s.0d The sellers made the necessary arrangements to ship the goods and informed the plaintiff that they were to be shipped by M.V. Hoegh Aurore and that the necessary documents would be presented to him “through Barclays Bank D.C.O., 40 Marina, Lagos at sight first presentation.” A bill of lading (exhibit 4) was on the 19th of March, 1965 issued by the sellers” agen

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ts. This exhibit 4 shows on its face that 1000 bags of Majestic potatoes were shipped by the agents of the sellers under “Cool Chamber Stow-age,” on M.V. Hoegh Aurore from London to Lagos (Customs Wharf and con-signed to order of Barclays Bank D.C.O. 40 Marina, Lagos. One of the terms provided in the bill of lading was “one original bill of lading must be surrendered duly endorsed In exchange for the goods or delivery order.” There also appeared on the bill of lading that Messrs. Negro Commercial Agency, P.O. Box 2029, Lagos were to be notified without liability to the carrier. Subsequently there was endorsed on the bill of lading an order by Barclays Bank D.C.O. Lagos to deliver to the order of Intercotra Ltd. and the bill of lading was finally endorsed with an acknowledgement as received for and on behalf of Intercotra Ltd. It is not disputed that save for the reference to notifying the plaintiff to which we have referred the plaintiff’s name in no way appeared on the Bill of Lading.

The M.V. Hoegh Aurore in fact arrived at Customs Wharf, Lagos, according to the evidence accepted by the learned trial judge, on the 6th of April, 1965 but despite all efforts to find the plaintiff or to contact him at the post office box ad-dress which was all he had given they were unable to do so and Barclays Bank D.C.O. being themselves unwilling to take responsibility for the discharge of the cargo to themselves so notified the defendant shipping company who accordingly moved the ship to Apapa Wharf. As the plaintiff had still not been found by the 13th of April, 1965 the M.V. Hoegh Aurore sailed to Port Harcourt retaining on board the consignment of potatoes. It returned to Lagos on the 19th of April, 1965 the defendant shipping company having notified Barclays Bank D.C.O. that as it had no other cargo to discharge in Lagos the ship could deliver the potatoes only by lighter as it was too costly to come alongside a wharf for that cargo alone.

Barclays Bank D.C.O. after consulting the sellers in England on their instructions endorsed the bill of lading to Intercotra Ltd. who on the 20th of April, 1965 after the potatoes had been unloaded from the ship’s cool chamber stowage into a lighter took possession of them on the wharf and signed for so receiving them in exhibits 12 and 18 when, according to the evidence of the imports manager of the ports agent of the defendant company which was not challenged in cross-examination In this respect, the potatoes were delivered in good condition. It was not in fact until the 27th of April, 1965 that the plaintiff was found and he then went to Intercotra Ltd. and paid them their own charges and some £920 customs duty, but on examining the goods he observed a smell from them and so called In an Independent surveyor who found that 557 of the bags were rotten. The plaintiff accordingly decided to sue the defendant shipping company for the selling price of the bad 557 bags of potatoes together with the cost of the surveyor’s fee and some of the costs he paid Intercotra Ltd. and also claimed general damages alleging a breach of the contract of carriage in the following terms in paragraph 22 in his statement of claim:-

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“22. At the trial, the plaintiff will rely on the foregoing facts as constituting breach of the said contract of carriage in that:

(a) The Hoegh Aurore deviated.

(b) That the defendants did not make the holds, refrigerating and cool chambers, and all other parts of the lighter “Niger Creek” in which goods were carried, fit and safe for their reception, carriage and preservation.

(c) The defendants did not ‘properly carry, keep and care for’ the 557 bags of potatoes.

(d) The defendants have failed to deliver the 557 bags of potatoes in apparent good order and condition.

(e) Potatoes are usually discharged at Lagos Customs Wharf into sheds from where they could be removed by their consignees.”

Mr. Adefala for the plaintiff/appellant has argued four grounds of appeal as we did not allow him to argue another ground of appeal when he alleged inadmissible evidence had been admitted because he had not specified what it was.

On the first ground of appeal, which reads:-

“1. The learned trial judge erred and misdirected himself in law in holding that there was no contract between the plaintiff and the defendant.”

Mr. Adefala argued at great length that the plaintiff was entitled to sue under the bill of lading, as counsel maintained that the plaintiff was consignee or alternatively an endorsee. Counsel put his case in this way:-

There was a C.I.F. contract between the plaintiff and the sellers and arising from that the goods were shipped on the bill of lading “to the order of Barclays Bank D.C.O.” Counsel submitted that the property in the goods did not pass to Barclays Bank D.C.O. as they were not parties to the original contract but Barclays endorsed to Intercotra Ltd. so that when the plaintiff paid Intercotra Ltd., their outstanding fees he became the endorsee and so in place of the consignee in respect of the bill of lading for the purposes of section 1 of the Bills of Lading Act, 1855 which reads as follows:-

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“1. Every consignee of goods named In a bill of lading, and every endorsee of a bill of lading, to whom the property in the goods therein mentioned shall pass upon or by reason of such consignment or endorsement, shall have transferred to and vested in him all rights of suit, and be subject to the same liabilities in respect of such goods as if the contract contained in the bill of lading had been made with himself.”

Counsel concedes that the plaintiff’s name does not appear (other than the reference to his being notified) on the bill of lading (exhibit 4) but nonetheless he submits that he must be treated as an endorsee for the purpose of section 1 of the Bills of Lading Act, 1855 because the property in the goods had not passed till the plaintiff took possession of them as no one else had any contract in respect of them with the sellers.

Mr. Adefala cited to us passages from a number of authorities referred to in Carver’s Carriage of Goods by Sea 10th Edition, but when reports are referred to we prefer to go to reports themselves, when they are available, to see fully what was decided and here the three authorities in fact referred to were: (1) Sewell v. Burdick (1

Other Citation: (1968) LCN/1580(SC)

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