Kaycee (Nigeria) Ltd V. Prompt Shipping Corporation & Anor (1986)

LawGlobal-Hub Lead Judgment Report

KARIBI-WHYTE, J.S.C

Plaintiffs/Appellants have appealed to this Court against the dismissal of their appeal by the Court of Appeal. The only issue which has been raised for determination before us and was also the central issue in the Court of Appeal is whether on the interpretation of clause 24 of the Bill of Lading Exhibits “B” and “B1” and on the facts of the case, Plaintiffs/Appellants were barred from instituting actions in respect of damage to or loss of goods arising from Exhibits “B” and “B1″ The majority of the Court of Appeal, Adenekan Ademola, J. C. A., and Uthman Mohammed, J. C. A., concurring held that it did. Nnaemeka-Agu, J. C. A., held that it did not.

Appellant has filed only one ground of appeal, which reads

1. The majority of the Justices of the Court of Appeal erred in law by construing clause 24 of the Bills of Lading Exhibits Band B 1, as imposing a limitation of action on the appellants and thereby came to a wrong decision.

PARTICULARS OF ERROR AT LAW

(i) Limitation of action is a creature of statute, not by an act inter partes.

(ii) Limitation of action in case of Carriage of Goods by Sea is imposed by Article 6 of the Carriage of Goods by Sea Act 1924 which is in pari materia with Carriage of Goods by Sea Act (Cap. 29) Laws of the Federation of Nigeria 1958. The Act is expressly made applicable to Exhibits B and B1.

(iii) The period of limitation under the statute is one year (Article 3, Rule 6, third paragraph) and not 3 days, as interpreted by the majority of the Justices by reason of clause 24.

(iv) Carriers of Goods are by Statute prohibited from including in the Bill of Lading any clause relieving from or lessening for a carrier liability otherwise than as provided in Article 3, Rule 6 (see Article 3, Rule 8) which provides One Year of Limitation.”

The circumstances, which culminated in the Litigation, which gave rise to this appeal, was a short delivery of a consignment of 600 cases of door locks sent to the appellant. Appellant received value invoice from Climax Ltd., Hong Kong, the consignor, that they should expect on board SS Silver Coast, a consignment of 600 cases of door locks.

The original value invoice was attached to the Bill of Entry. This is Exhibit A. Appellant received also the Bill of Lading No. 98, Exhibit B, from the 1st Respondent, the owners of the vessel SS Silver Coast, in respect of the consignment. The Bill of Lading forwarded to Appellant by the International Bank for West Africa was tendered as Exhibit “B1”. The “SS Silver Coast” carrying the consignment of 600 cases of door locks berthed at the Tin Can Island Port on 4/3/81. Appellant accordingly submitted the Bill of Entry and the Bill of Lading, Exhibits A and “B1” respectively to the Nigerian Ports Authority, (the 2nd defendant in this action requesting the Authority to clear their cargo for them on the ship.

The evidence before the trial judge was that more than 600 cases of door locks were tallied during the discharge of the ship. But out of the 600 cases consigned to Appellants as per Exhibit “B 1” only 393 were cleared from the Nigerian Ports Authority (the 2nd Defendants) shed on 27/3/80 and 1/4/80 as disclosed from three delivery sheets Exhibit “C”-“C2”. The representatives of both the Prompt Shipping Corporation and Nigerian Ports Authority, the 1st and 2nd Defendants in this action, signed the Agreed Final Out Turn Report, Exhibit H, which indicated the short delivery. The Appellants then complained to the respondents about the short delivery of 207 cases of their cargo of door locks on board “SS Silver Coast”.

There was no dispute that the consignments which were landed by the 1st respondent on the 23rd and 24th March, 1980 were released to the Appellants on 27/3/80 and 1/4/80. Appellants gave notice of the short delivery to the 1st respondent by their letter dated 9th May, 1980-Exhibit D. This is a period of 38 days from the delivery of the consignment. Appellant made formal and repeated demands to the respondents with respect to the short delivery of 207 cases of its consignment by letters dated 26/3/80, 18/4/80,24/6/80, 14/7/80,22/7/80. When respondents refused or were unable to trace the missing 207 cases, Appellants brought this action claiming from the respondents as follows

“The Plaintiff’s claim against the defendants jointly and severally is for the sum of N20, 000.00 being special and general damages for the loss of and/or non-delivery by the defendants as common carriers and bailees of 207 cases door locks out of 600 cases door locks consigned to the order to the plaintiff by China Material Metals and Minerals Import and Export Corporation from Shanghai and as the endorsees thereof on the Bill of Lading No. 98 marked and numbered KAYCEE C4257 Apapa Nos. 100 Ex. the ship SS ‘Silver Coast’ at Apapa, Lagos on 4/3/80. And in the alternative, the plaintiff claims special and general damages for negligence for their non-delivery” .

The only ground of appeal relates to the interpretation of the effect of clause 24 of Exhibit “B1”, and this judgment is confined to this issue. I shall not express any opinion on any other issue that was decided in the judgment of the Court of Appeal.