Leventis Technical Limited V. Petrojessica Enterprises Limited (1999)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C.

The plaintiff, a dealer in technical goods, sometime in 1977 placed order through its London office, for some consignments of electric and gas cookers. The goods were shipped through the Facship Lines in Spain and for delivery at the Lagos Port. For some unexplained reasons however the goods which came through vessels of the Facship Lines (that is. Cabe. Farruch and Viclan Nimbus) arrived at the Burutu Port and were cleared by the defendant who acted throughout as the agent of Facship Lines. The plaintiff was unaware of the arrival of the goods at the Burutu Port until sometime in 1978. Efforts were made by its officials to take delivery of the goads. After payment to the defendant of all sums of money demanded by the latter for demurrage, etc, the plaintiff took delivery of the cookers in March. 1978. There was, according to the plaintiff, a short-delivery of 138 crates of gas cookers valued at N92,745.39.

Following protracted but unsuccessful negotiations between the plaintiff and the defendant, the former sued the latter on 9th August 1984 at the Federal High Court, Benin-City, claiming:

“(a) The delivery of the 138 crates of gas cookers short delivered at Burutu Port as at March, 1978 as shipping agent of Facship Lines Limited per Cabe Farruch, Viclan/Nimbus and Chambbey Era Vessels out of the total 202 crates of gas cookers, electric cookers and hot plates or

(h) The sum of N92, 745.39 (Ninety-two thousand, seven hundred and forty-five naira, thirty-nine kobo) being the value of the said 138 crates of gas cookers delivered by the defendant from the ships but undelivered to the plaintiff as at March, 1978 as particularised both in the writ of summons and the statement of claim filed in this action.”

Pleadings having been filed and exchanged, the action proceeded to trial before Ojutalayo. J. The plaintiff had pleaded in paragraphs 3 and 12 of its statement of claim thus:

“3. The defendant is a limited liability company and at all material times to this action held itself out to the plaintiff as the Ships Agent at Burutu Port, on voyages made under the auspices of Messrs Facship Lines of Vaduz. Liechtenstein and the said defendant supervised the Stewdorcil of vessels, management of port facilities and sheds allocated by Nigerian Ports Authority to the defendant”

12. The plaintiff avers and will maintain at trial that neither the ships nor Facship Lines Limited informed the plaintiff of the appointment of the defendant as their agent at any time.”

The defendant, in its statement of defence, replied:-

“4. Regarding paragraph 3 of the statement of claim, defendant admits that it (defendant) is a company registered in Nigeria with liability limited by shares.

5. Further to paragraph 3 of plaintiff’s statement of claim, defendant firmly denies ever having, now or at any time in the past anything whatsoever to do with the Stewdorcil of vessels.
6. Defendant admits, regarding paragraph 3 of plaintiff’s statement of claim, that it managed port facilities and sheds allocated by the Nigerian Ports Authority and that defendant held itself forward as so managing.

and went on to plead thus:

“26. This action was not brought within 1 year from March, 1978, which was the date the consignment was delivered to the plaintiff, and accordingly the action is barred by virtue of Carriage of Goods by Sea Ordinance Cap. 29 Laws of the Federation of Nigeria and Lagos 1958.

27. In any case defendant pleads that the cause of action referred to in the writ of summons and paragraph 37 of plaintiff’s statement of claim accrued to the plaintiff more than 6 years before the date of the commencement of this action. In the premises, action against the defendant was and is barred by virtue of the Limitation Act 1966.
28. Further, by reason of the matters aforesaid the title of the plaintiff to the said goods has been extinguished by virtue of the Limitation Act 1966.

29, Wherefor the defendant avers that the plaintiff is not entitled to claim against it as stated in paragraph 37 of his statement of claim and that the claim is misconceived, frivolous, speculative and ought to be dismissed with substantial costs.”

Evidence was led on both sides at the conclusion of which, and after addresses by learned counsel for the parties, the learned trial Judge. in his judgment, found:

1. That the defendant was at the material lime the agent of the ship owners, Facship Lines Ltd. in Nigeria.
2. That the defendant as agent of a known and disclosed principal, the Facship Lines Ltd., could not be held liable to the plaintiff for short delivery or non-delivery of the 138 crates of gas cookers in issue in this case.
3. That the 138 crates of gas cookers should have been delivered on or before 31st March 1978 when the cause of action arose.
4. That as the writ of summons was taken out on 9th August 1984, a period of over 6 years after the cause of action arose, the action was statute barred by virtue of the Carriage of Goods by Sea Act. Article 3 rule 6 of the Schedule thereto.

Concluding his judgment, the learned Judge said: