Holts Transport Ltd V. K. Chellarams & Son (Nigeria) Ltd (1973)

LawGlobal-Hub Lead Judgment Report

G. B. A. COKER, J.S.C.

The appellants Holts Transport Limited-were the 1st defendants in an action instituted in the High Court, Warri, by the respondents; as plaintiffs, i.e. K. Chellarams & Sons (Nigeria) Ltd., and in which the plaintiffs claimed against two defendants, the second being the Elder Dempster Agencies Ltd. The plaintiffs’ writ was endorsed as follows: “The plaintiffs claim against the defendants jointly and severally is for a sum of 4, 159:0:4d. (four thousand one hundred and fifty nine pounds and four pence) being damages sustained by the loss of 15 bales of Real Madras handkerchiefs which were entrusted to the defendants as bailees and/or carriers and received by the defendants as such bailees and/or carriers for hire and reward for delivery to the plaintiffs at Warri which said bales of Real Madras handkerchiefs the defendants have negligently failed and neglected to deliver to the plaintiffs despite repeated demands.”

According to the pleadings delivered by the parties, the dispute between them arose in circumstances in which the plaintiffs imputed blame to the defendants for negligence in keeping 15 bales of Real Madras handkerchiefs which the defendants undertook to carry from India to Warri. The amended statement of claim avers that in or about May, 1967, by virtue of a contract of carriage between the plaintiffs and the 2nd defendants, the former delivered 40 bales of Real Madras handkerchiefs to the latter in Madras, India, for shipment to Nigeria and delivery to the plaintiffs at Warri and that on or about the 3rd August, 1967 the 2nd defendants landed the goods at the port of Warri. Paragraphs 9 and 10 of the amended statement of claim then aver as follows-

“9. Notwithstanding the defendants’ cargo removal notice dated the 4th August, 1967 sent to the plaintiffs the defendants failed and/or neglected either to discharge the said goods or to deliver same to the plaintiffs.

10. The plaintiffs paid to the 1st defendants the agreed amount for their duties as bailees of the said goods to be by them taken care of and delivered safely to the plaintiffs within a reasonable time.”

The statement of claim further avers that in or about August, 1967 the 2nd defendants delivered only 24 bales to the plaintiffs and were unable to deliver the remaining 15 bales since then. In particular, paragraph 12 avers as follows

“12. In breach of their duties and/or contract both the 1st and the 2nd defendants were negligent in their handling of the goods and in failing to deliver same to the plaintiffs in full in that having regard to the nature, value and the character of the goods and the particular locality, they failed to exercise due care with respect to the custody of the said goods and failed to provide any or adequate security and/or safety measures in the circumstances and thereby caused and/or permitted the said goods to be lost while in their custody.”

The two defendants filed a joint statement of defence and indeed at the trial were represented by the same counsel and the same witnesses. By their amended statement of defence, the defendants denied liability as carriers or otherwise. The statement of defence further avers that only 39 bales were in any case shipped from India and that only 24 of these were in fact delivered to the plaintiffs at Warri. The statement of defence further avers that on the 4th August, 1967 24 bales were landed into the 1st defendants’ lighter No. 65, and on the 5th August, 1967 15 bales were landed into the 1st defendants’ lighter No. 57, and that both lighters were in the premises of the 1st defendants when rebel soldiers occupied the said premises and took possession of everything therein. Paragraphs 7 and 10 of the amended statement of defence read:

“7. In further answer to paragraphs 6 and 11 of the amended statement of claim, the 2nd defendants state that failure to deliver the 15 bales was occasioned by the culpable delay on the part of the plaintiffs to take reasonable steps to remove their consignment from the premises of the 1st defendants in spite of the ‘Cargo Removal Notice’ served on the plaintiffs on or about the 4th August, 1967 until after the Midwest including Warri was invaded and occupied by the Nigerian rebels. The defendants will at the trial found on the ‘Cargo Removal Notice’ and ‘Bill of Entry’ showing that the plaintiffs paid the necessary custom duties only on the 13th October, 1967.”

“10. The defendants further state that the rebels carried out heavy looting of property in the premises of the 1st defendants and indeed all over the Midwest and that the 15 bales of the Real Madras were among many other things looted from the premises of the 1st defendants in Warri by the rebels.”

The action then went to trial and the parties called witnesses. The witness for the plaintiffs described the 1st defendant, i.e. Holts Transport Ltd., as agents of the 2nd defendant (i.e. Elder Dempster Agencies Ltd.) in Warri and stated, inter alia, that on the 4th August, 1967 the plaintiffs were advised by the 1st defendants, now the appellants before us, of the arrival of the goods by the ship S.S. “Oti” on the 3rd August, 1967 and that thereafter he paid a number of visits to the 1st defendants and that after repeated visits by him to the 1st defendants only 24 bales were delivered to him on the 13th October, 1967. He had earlier on, about the 26th August, 1967 paid the customs duties on the 24 bales which were found and according to him the information he received from the 1st defendants was that the goods were still inside the lighters. The witness for the defence stated in the court of his evidence that rebel soldiers occupied the whole of Warri as from the 9th August, 1967 took possession of the 1st defendants’ beaches and their business came to a standstill thereafter. He stated further thus-

“We could not operate. They started to drive us out right from that date. When the rebels were too hard on us we took a policy decision. On 24th August, 1967 we closed down the business and we sent the staff away. They the rebels forced us to give them the addresses of everybody and said they do not want any body in the premises any more and that if they want any one they would send for him. We reopened the business on 6th October, 1967 when we the staff came back.”

He confirmed the storage of the goods in the lighters of the 1st defendants and testified that to the best of his knowledge the plaintiffs did not present the necessary documents to enable them to take delivery of the goods before the business of the 1st defendants closed down on the 24th August, 1967 and that when they resumed duty in October, 1967 they discovered the lighter No. 57 which carried the remaining 15 bales of cloth “far away into the Escravos Creek already broken into and all the goods therein removed”. He admitted in cross-examination that the 24 bales delivered to the plaintiffs were collected from the shed belonging to the 1st defendants, the goods having been discharged to shed No.1 at the time when the lighter was about to sink. He also admitted that during the period of occupation by the rebel army, he delivered “several cargoes that arrived by the S.S.”Oti” and that at any rate he made a delivery of cargo (other cargo) to the plaintiffs themselves during the same period.”

In a reserved judgment, the learned trial judge, Obaseki J., concluded that the contract of carriage by sea had terminated on the arrival of the goods in Warri and that the two defendants had by clause 10 of the conditions in the bill of lading exculpated themselves from liability for any loss as that envisaged by the case of the 15 bales that were missing. He dismissed the action against the 2nd defendants and gave judgment for the plaintiffs against the 1st defendants for damages totalling ‘a34, 159:0:4d. (or N8,3184.4) with costs for their negligence as bailees. Hence this appeal.

As stated before, the 1st defendants are the present appellants before us. On their behalf it was contended in this Court, firstly, that there was no contractual relationship between the 1st defendants and the respondents on which an action for breach of contract could be founded and, secondly, that the 1st defendants were not paid bailees or indeed bailees at all and, lastly, that even if they were bailees there was no proof that they were negligent in the care and keeping of the 15 bales of Real Madras handkerchiefs. On the other hand, learned counsel for the respondents submitted that the case against the 1st defendants was in tort; that they were indeed bailees even if it was not proved that they were paid and that there was proof as found by the learned trial judge of negligence on their part in at the wnt and the endorsement on it. The claim of the respondents is for “damages sustained by the loss of 15 bales of Real Madras handkerchiefs which were entrusted to the defendants as bailees and/or carriers …”. The writ also has endorsed on it an averment that the defendants had “negligently failed and neglected to deliver to the plaintiffs, despite repeated demands” the goods which are the subject-matter of the action. In the same way, the statement of claim makes it clear that the contract of carriage was made between the respondents and the 2nd defendants, that is Elder Dempster Agencies Ltd., but that at the actual time of the loss, quite apart from the evidence, the appellants were the agents of Elder Dempster Agencies Ltd. in Warri and the goods were in the custody of the appellants for their safe-keeping and eventual delivery to the respondents.