Mediterranean Shipping Co. S.A. & Anor V. Mr. Alexander Enemaku & Anor (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A (Delivering the Leading Judgment)

This is an appeal against the judgment of the Honourable Justice M. L. Shuaibu sitting at the Federal High Court, Lagos judicial, division delivered on the 24th day of April, 2008.

The facts that led to this appeal are as follows:

The plaintiff now the 1st Respondent was posted to the Nigerian High Commission in Australia where he served for 5 years before he was posted to Abuja in 2003. As a result of his posting, he had to convey all his personal property acquired abroad to Nigeria. He employed the services of Forwarding Agents, Megatop Cargo Pty Limited and Australian Freight Forwarders International Pty Limited to help convey the property by sea to Nigeria. The Plaintiff claimed that the Appellant and the agents agreed to convey the goods to Nigeria for a sum of 3,700 Australian dollars via the vessel MSC ‘Lara’ and he was subsequently issued a Bill of Lading.

It was agreed that the goods would be delivered within 3 months from the day of shipment. The property was however not delivered on the agreed date. All enquiries as to the whereabouts of the goods failed, and the 1st Respondent brought an action at the Federal High court Lagos on February 24, 2005 claiming jointly and severally against five Defendants as follows:

1. The sum of United states Dollars US$ 120,000 being the value of the goods undelivered to the Plaintiff:
2. The sum of Australian Dollars AUD3770 being the freight and other charges paid on the goods by the Plaintiff;
3. Damages for the pain and suffering occasioned the Plaintiff following the non-delivery of the Plaintiff’s goods.

The 1st Respondent’s claim was originally against 5 Defendants namely:

1. Mediterranean Shipping Co. S.A. (owners of the vessel MSC ‘Lara’)
2. The vessel MSC ‘Lara’
3. Comet Shipping Agencies Nigeria Limited
4. Megatop Cargo Pty Limited and
5. Australian Freight Forwarders Intl Pty Ltd.

He later filed a notice of discontinuance as against the 4th and 5th Defendants and their names were accordingly struck out. Again the 1st Respondent filed another motion to join or restore the name of the 4th Defendant as a party to the suit and his prayer was granted.

Issues were joined by the remaining parties and after a full trial, the trial court entered judgment in favour of the 1st Respondent in the sum of US$120,000 and AUD 3,770 jointly and severally against the 1st-4th Defendants. The 1st and 2nd Defendants now Appellants being dissatisfied with the judgment brought this appeal.

The Appellants’ brief, dated 15th of June 2010 was filed on the same day. Appellants’ Reply brief dated 6th day of July was also fifed the same day. 1st Respondent’s brief was dated 22nd of June 2010 and filed the same day.

Appellants’ counsel, Ayo Olorunfemi ESQ identified six (6) issues for determination as follows:

1. Was the learned trial judge right to have held the Appellants bound by the contents of the Bill of Lading (Exhibit C1) and/or that they breached same when the said Bill of Lading was not issued or authorized by them and is not an owner’s bill?
2. Whether the mere facts of Defendant witness 1 (DW1) and/or his co-staff tracing and tracking of the vessel, “MSC LARA” and the container are conclusive proofs that the Appellants are parties to the Bill of lading contract (Exhibit C1).
3. Whether from the available evidence, the trial court was right in its, conclusion that the Appellants accepted to carry the Plaintiff/Respondent’s cargo on board their vessel?
4. Was the learned trial judge right to have awarded special damages in the sum of US$120,000 and/or Australian Dollars 3,770 particularly as against the Appellants for an alleged breach of the terms of the Bill of lading (Exhibit C1) to which the Appellants were not parties and when the Plaintiff/Respondent failed to establish by credible evidence the said claim for damages?
5. Was the learned trial judge right to have relied on an unsigned document (Exhibit D) which was also shown to have been prepared when proceedings were anticipated and therefore clearly inadmissible and/or reliable?
6. Whether from the totality of the available evidence, the learned trial judge was right to have entered judgment as claimed against the Appellants?

On the other hand, 1st Respondent’s counsel, Sylva Ogwemoh distilled three (3) issues for determination as follows:

1. Was the Learned Trial Judge right in holding the Appellants liable in the circumstances of this case for the non-delivery of the 1st Respondent’s goods of personal effects in Nigeria under the relevant Bill of Lading, Exhibit ‘C’?
2. Were the Appellants under a duty as carriers to deliver the 1st Respondent’s goods to Lagos, Nigeria, being the named port of discharge under the relevant Bill of Lading, Exhibit ‘C’?
3. Is the 1st Respondent entitled to be compensated by the Appellants for the non-delivery of his goods in Lagos, Nigeria, as agreed?

I will adopt the Respondent’s issues which speak more particularly to the questions at stake. However, I will recouch the issues to bring to the fore relevant questions in controversy between the parties.

1. Whether the learned trial judge was right in holding the Appellants liable for non-delivery of the 1st Respondent’s goods under the bill of lading – Exhibit C1.
2. Whether the Appellants had agreed to carry the 1st Respondent’s goods and as such under the duty as carriers to deliver the 1st Respondent’s goods to Lagos, Nigeria.
3. Whether the learned trial court was right in awarding special damages in the sum of US$120,000 and AUD3, 770 against the Appellants.

It should be noted that the Appellants in their Reply brief submitted that the 3 issues formulated by the 1st Respondent are not covered by any of the 6 grounds of appeal filed. Counsel submitted that it is trite law that where an issue formulated for determination is not predicated upon any ground of appeal; it is incompetent and liable to be struck out. He argued that the 1st Respondent’s issues as formulated should therefore be discountenanced and the appeal should therefore be deemed as having been conceded and should be allowed accordingly. My own humble view is that Respondent’s counsel had a right to formulate issues for determination different from the Appellant’s as long as they can properly be distilled from the grounds of appeal.

The Appellants did not state specifically how they arrived at the conclusion that the 1st Respondent’s issues did not emanate from the grounds of appeal. In this case, the Respondents’ issues are clearly based on the grounds of appeal. It is immaterial whether the Respondent did not marry them to the grounds of appeal in the brief or indicate specifically the grounds from which they were derived. Suffice it to say that the complaints against the Respondent’s issues are completely misconceived.