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.
- The aforesaid containers were sealed with seals bearing the inscriptions “Frezekovas.t.c. “and “Electrozared s.r.c.” respectively.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
(B) That the 2 containers now in dispute were tampered with while in the custody of Nigerian Ports Plc and the original seals were removed and replaced with two new seals Nos. 1946588 and 1946551 respectively.
(C) That by the contract of carriage between the Plaintiffs and the 1st and 2nd Defendants, the liability of the Defendants ceases immediately the goods have passed the ship’s rail upon discharge. The Defendants shall rely on clause 10 and or clause 8 of the carrier’s bills of lading and clause 9 or clause 11 Nos. 19, 20, 21, 26, 27 and 28 dated the 22nd March, 1993 at the trial.”
From the pleadings of parties above, it is apparent that the case of the Plaintiff was that two of the five containers ordered by the Plaintiffs and which were conveyed in the vessel MN Kadrina belonging to 1st and 2nd Defendants. The Plaintiffs alleged that the seals fixed to the containers at the port of shipment were broken and replaced with twisted wire seals and that the containers were empty when they landed at Apapa Ports in Nigeria.
On the other hand, it was the case of the Defendants that the containers were delivered in a sound condition to the Nigerian Ports Plc and that when they were so delivered, the containers had wire seals as was customary with containers coming into Nigeria from the Port of Tallin.
There was no dispute between parties that the extent of the liability of the ship owners is as stated or limited on the Bill of Lading governing the carriage of the goods. Clause 10(1) of the Bill of Lading provides:
“1. In no event shall the carrier be liable for damage to and/or loss of goods prior to loading or after discharge, not even if such damage or loss is due to the negligence of his servants and even though the goods are in the custody of the carrier, his agents or servants as warehousemen or howsoever. In no event shall the carrier’s liability commence before the goods have been loaded over the ship’s rail and shall cease at the latest when goods have passed ship’s rail upon discharge. The Merchant shall be required to prove that the goods were damaged within this period of responsibility.”
In order to succeed therefore, the Plaintiff needed to prove that the loss in respect of which he brought his claim occurred between the period the goods were loaded and the period they were discharged across the ship’s rail in Nigeria.
In support of his case, the Plaintiff called the evidence of witnesses as to the joint examination of the two containers. The joint examination took place on 3rd June, 1993. This was some 24 days after the containers were discharged into the custody of the Nigeria Ports Plc. The evidence that the containers were found empty on 3/6/93 would help the Plaintiff’s case only to the extent that the containers as found on 3/6/93 were in the same condition they were when discharged from the ship 24 days earlier.
The evidence of P.W.s 1-3 was unhelpful to the Plaintiff’s case as none of them had been present when the containers were discharged from the ship.
The evidence of P.W. 4 was destructive of Plaintiffs case. He said under cross-examination.
“I carried out the report. I was present when the two containers were discharged … vessel. There were other people present when I prepared the report. Other Tally clerks were also present. Its containers came with wire seals, I did not open the container but from the sound I know it was full. The containers as per my report were not tampered with. If there is any damage on the containers the captain will not sign it.”
The Plaintiff himself testified as P.W.5. In his evidence-in-Chief the Plaintiff said:
“I was not present when the containers were being delivered from the vessel. The vessel arrived Nigeria Territory waters on 18/4/93 and berth (sic) on the 3/5/93: I had five containers on the vessel altogether. The other three were found with their original seals and the goods were intact. It was our clearing agent who informed us that the containers were tampered with around the 10/5/93, it was opened on the 3/6/99. I owned the containers and when they were opened I was there.”
(italics mine)
The defence witnesses testified as to how the containers were discharged on 3/5/93 and 10/5/93, their evidence was to the effect that the containers landed with wire seals and that there was nothing irregular on them. The tally sheets showing that the containers were received in good condition were tendered in evidence.
On the evidence available, it is difficult to see how the lower Court could have given judgment in favour of the Plaintiff. The Plaintiff testified that the containers were tampered with around 10/5/93. If the Plaintiff was not himself in the vessel how could he say categorically that the containers were tampered with on 10/5/93. The containers were discharged on 10/5/93. The Plaintiff did not state how he came to know that the containers were tampered with on or about 10/5/93. Remarkably, he did not say who tampered with the containers on 10/5/93.
It would seem that the Plaintiff built his case on the evidence that the seals affixed to the containers at the port of loading were not the same found on the two containers the contents of which were messing. But the evidence of D.W.s, 1 & 2 who were the Tally clerks suggested that all the five containers had the same wire seals. With respect to his aspect, the lower Court in its judgment observed:
“One issue that has to be examined is the fact about the oxidation of the original seal numbers written on the Bills of Lading. As I have already stated at the time the containers were off loaded from the ship nothing unusual was noticed on the containers. They all say that there was no damage or sign of temperance with the containers. The relevant documents which supported the reports are Exhibits ‘J’, ‘K,’ and ‘I’. They all showed that the containers arrived with wire seal.
The Plaintiff counsel, drew the attention of the Court of the Defendant counsel to the fact that, the alleged oxidation could not have damaged the inscriptionof the seal from “Erezekova Stc” to Electrozaved s.i.c. 1946588 and 1946551 respectively. What is obvious and has not been contradicted is that at the time the containers were tallied on the 7th and 19/5/93 respectively, the said numbers were not seen and therefore not recorded by any of the Tally clerks including the one representing the Plaintiff.
At page 14 of the record of proceedings, the lower court in its judgment concluded thus:
“I am therefore from the facts disclosed in this case and established, there is no strong evidence to prove that the said containers and the contents were tampered with while on transit and that means, while in the custody of the Defendants. But I am of the opinion that the NPPLC or NPA should have been joined as a party or sued on their own considering the fact that the goods have been in their custody for about 24 days.”
The lower Court had seen and heard the witnesses testify. It has not been alleged that the findings of fact made and the conclusions arrived at were not supported by the evidence before the lower Court. In Lawal v. Dawodu (1972) All NLR 707 at 722, the Supreme Court observed:
“In the evaluation of evidence, we think it firmly established in our juris-prudence that a Court of Appeal ought not except in exceptional circumstances to interfere with what must be the outcome of a dispassionate consideration of the evidence by a judge who saw and heard the witnesses give evidence. The ascription of probative values to the evidence comes at a later stage of the whole process and it is also established that this is a matter for the Judge who saw and heard those witnesses give their evidence. Nevertheless, the area is one in which the Court of Appeal is at least equally qualified and competent and indeed is often required to exercise jurisdiction in certain exceptional circumstances.”
See also Eriri v. Erhurhobarea (1991) 2 NWLR (Pt. 173) 252 at 273; Ebba v. Ogodo (1984) 1 SCNLR 372 at 385.
I have no reasons whatsoever to interfere with or disturb the solemn findings of fact made by the lower Court; and as those findings lead irresistibly to the final conclusion in the judgment, I must uphold the judgment.
In the final conclusion, this appeal fails and is dismissed with N2,500.00k (Two Thousand, Five Hundred Naira) costs in favour of the Respondent.
Other Citations: (1999)LCN/0476(CA)