Hilary Forms Limited & Ors V. M.v. ?mahtra? (Sister Vessel to M.v. ?kadrina? & Ors (1999)

LawGlobal-Hub Lead Judgment Report
OGUNTADE, J.C.A.

The Appellants were the Plaintiffs before the Federal High Court, Lagos where they claimed against the Respondents, as Defendants, the sum of US$103,050,87, being damages “for loss or non-delivery of the voyage from Tallin to Lagos in or about May, 1993, sustained by reason of the Defendants’ breach of contract and/or duty and/or negligence in and about the carriage thereof.” .

As made Manifest in the claim, the Plaintiffs had a contract for carriage of goods with the Defendants. The goods consisted, of 658 boxes of Electric Water Heaters. According to Plaintiffs, the Defendants failed to deliver the goods. Parties failed and exchanged pleadings after which the Suit was tried by Auta J. who on 27/7/94, in his judgment dismissed plaintiffs’ claims.

Aggrieved by the dismissal of their suit, the Plaintiffs have brought this appeal on four grounds of appeal. In their Appellants’ brief, one solitary issue was identified as arising for determination, namely:

“Whether on the available evidence the Defendants are liable to the Plaintiffs for the loss of the contents of containers Nos. EMU 3606825 and MMU 1357739.

It is necessary that the relevant paragraphs of the pleadings of parties be examined in some depth in order to identify the issues raised before the lower Court. Paragraphs 7, 8, 10, 11, 12 and 16 of the Statement of Claim read:

“7. The Bills of Lading Nos. 19, 20, 21, 26, 27 and 28 dated 22nd March, 1993, the Master of M/V Kadrina aforesaid certified that the two containers Nos. MMU 3606825 and MMU 1357739 were loaded on board the aforesaid vessel for carriage from Taillnn to Lagos.

8. The aforesaid containers were sealed with seals bearing the inscriptions “Frezekovas.t.c. “and “Electrozared s.r.c.” respectively.
9. By N.P.A. Tally sheet No. 005090 dated the 10th May, 1993, it was certified that the aforesaid containers were discharged into the custody of the NPA. It was further certified that the original seals on the aforesaid containers had been removed and in their place was twisted wire.
10. By Container Intercharge Receipts Nos. 5290495 and 520050 B issued by the 3rd Defendant, it was confirmed that the aforesaid original seals on the aforesaid containers had been replaced with twisted wire.
11. On the 3rd June, 1993, at the request of the Plaintiffs, a joint examination of the aforesaid containers was conducted in the presence of representatives of the Board of Customs and Excise, Police Officers, Officers of the N.P.A. representatives of the 3rd Defendant and of the Plaintiffs.
12. By a letter dated 10th August, 1993, the General Manager of the Nigeria Ports PLC informed the legal adviser of the Plaintiffs that investigations had revealed that the aforesaid containers were landed without seals. Consequently, the NPA had repudiated liability.”

In their Amended Statement of Defence, the Defendants pleaded thus:

“5. The Defendants aver(s) (sic) with further reference to paragraph 4 above that the Eleven containers arrived with lead wire seals as it is customary of all containers shipped from Tallinn to Nigeria. The Defendants shall at the trial rely on the Statement of the Commercial Department of Estonian Shipping Company Limited Tallin on the two containers now in dispute expressed in the telex dated 20th July, 1993.

6. The Defendants aver(s) with reference to paragraph 3, 11, and 12 of the Plaintiff’s Statement of Claim that all the 11 containers described in paragraphs 4 and 5 above were discharged without any report of broken or damaged seals and all the 11 containers were described as having been discharged, full sound and intact with “wire seals.”

The Defendants shall rely on the following documents at the trial:

(A) Nigerian Ports Plc Landing Tally Sheets Nos. 00590 and 00592 dated 7th May, 1993, and 10th of May, 1993 respectively.

(B) Airaine Interchange Receipt/Damage Report Nos. 029040-47B and Nos. 029046 – 508 dated the 7th of May, 1993 and 10th May, 1993 respectively.

7. The defendants aver(s) (sic) with further reference to paragraph 5 above that the Plaintiffs took delivery of 5 out of 11 containers bearing the description “wire seals” from the custody of Nigerian Ports Plc after its discharge by the Defendants.
8. The defendants aver(s) with specific reference to paragraph 13 of the Statement of Claim that the joint examination of the two containers were (sic) carried out 24 days after the containers were discharged and when it was no longer in the custody of the Defendants but that of Nigerian Ports Plc.
9. The Defendants aver(s) with reference to paragraphs 11-15 of the Statement of Claim that it was during the joint examination that the two seals No. 1946586 and 1946551 were discovered for the first time on the two containers. The Defendants shall rely on the following reports at the trial.

(A) Meloma International Associates Survey Report dated 14th June, 1993.

(B) Caleb Brett Survey Report dated 15th June, 1993.

10. The Defendants aver(s) with reference to paragraph 16, 20 and 21 of the Plaintiffs’ Statement of Claim that all the 11 containers bore the descriptive term “wire seals” as contained in all the reports and were discharged full sound and intact on the 7th and 10th of May, 1993 respectively.
11. The Defendants will contend at the trial of the action:

(A) That the 2 containers now in dispute arrived with other 9 containers with the original seals and were delivered into the custody of Nigerian ports Plc full sound and intact.