Nigeria Ports Authority V Akar And Sons (1965)
LawGlobal-Hub Lead Judgment Report
This is an appeal from the judgment of the High Court of Lagos, Suit No. LD/570/62, whereby judgment was entered against the appellants, hereinafter referred to as the defendants, and in favour of the respondents, hereinafter referred to as the plaintiffs, in the sum of £1,242-10s as special damages and £50 as general damages making a total of £1,292-10s, and costs assessed at 60 guineas. The plaintiffs’ writ is endorsed as follows:-
“The plaintiffs’ claim against the defendants is for the sum of £1,500 (One thousand, five hundred pounds) being special and general damages of which £1,242-10s (One thousand two hundred and forty-two pounds ten shillings) is the cost and value of goods delivered to the defendants at their Port in Lagos, on or about the 26th day of October, 1961, and the defendants were paid the usual fee charged by them for the purpose, upon the terms that the said goods should be taken care of by the defendants and re-delivered to the plaintiffs.
The defendants did not take care of the said goods and the defendants did not re-deliver the same to the plaintiffs upon their requesting them orally on the 11th day of November, 1961 to do so whereby the said goods were and are lost and the plaintiffs have been put to great inconvenience and expenses.In spite of several demands by the plaintiffs, the defendants have failed or neglected to pay for the said lost goods.”
The Statement of Claim avers in substance the facts contained on the writ and the Statement of Defence whilst admitting the disappearance of the seven cases of textile goods from their warehouse denies any want of due care on their part and avers that the defendants were relying on the protection afforded them by section 91 of the Ports Ordinance, 1952. The evidence at the trial clearly establishes the disappearance of the seven cases of textile goods from the warehouse of the defendants. There was no evidence as to how the cases got missing or were removed but there was equally clear evidence from the defendants (and this was admitted by one of the plaintiffs’ witnesses) that adequate security measures were under-taken by the defendants to safeguard the properties left in their charge. The learned trial judge came to the conclusion that the defendants had failed to establish that they were not negligent with regard to the safe custody of the goods and entered judgment against them in the terms described above. In the course of his judgment he observed as follows:-
“Elaborate and detailed as the system was in the warehouse, it seems incredible that if the system was carried out efficiently, 7 cases of the size described in evidence could have gone out of the shed without detection. I am not suggesting for a moment that it is expected of the system to be theft-proof but 7 cases of the size described getting out of the shed without being detected is strong evidence of want of care. The plaintiff had no means of telling how the loss of the 7 cases had been caused and the onus was therefore on the defendants to prove facts inconsistent with liability, there being a presumption in the circumstances that the loss had been caused by the want of care on the part of the defendants and/or their servants.”
Later on in his judgment, the learned trial judge dealt with the defence put forward by the defendants under section 91 of the Ports Ordinance (now Ports Act) Cap. 155. The judge observed that section 91 (a) and (b) does not give an absolute discharge to the defendants and that the “onus is on the defendants to support by evidence the pleas that they are not liable under section 91”. He pointed out that the defendants had led no evidence to support their plea that the goods were illegally removed from the warehouse and concluded as follows:-
“In my view and on the evidence, the loss of the seven cases was caused by want of reasonable foresight and care on the part of the defendants and I find that the defendants are liable.”
Learned counsel appearing for the defendants contended before us that the judge erred in law and misdirected himself as to the onus of proof in regard to section 91 of the Ports Act and that even if the judge had properly interpreted section 91 the defendants had, on the evidence before the court, discharged the onus of proof required to entitle them to the protection afforded by that section. Counsel referred us to the case of Bonnington Castings Ltd. v. Wardlaw  A.C.6 13 where it was held by the House of Lords that where a plaintiff claimed compensation from his employers and relied on the breach of some regulations of the Grinding of Metals (Miscellaneous Industries) Regulations, 1925, by the employers, the onus of proof lay on the plaintiff to show by the ordinary standard of proof in civil actions at least that on the balance of probability the breach caused or materially contributed to the injury he suffered and not merely that it was possible that the injury might have been so caused. Counsel further contended that where a statute expressly so provides the position as to onus of proof at common law would be reversed. On behalf of the plaintiffs it was submitted by learned counsel that section 91 does not reverse the position at common law whereby in a claim against a bailee who is unable to produce the article bailed with him the onus is on the bailee to show that he exercised such care as a prudent man would use in keeping his own property. Counsel referred us to the case of Brooks Wharf v. Goodman Bros.  1 All E.R. 258, where at p.261 it was pointed out that in bailment at common law the onus of proving that there is no negligence is on the bailee.Section 91 of the Ports Act, Cap. 155 reads as follows:-
“Subject to the provisions of this Ordinance or any contract, the Authority shall not be liable for the loss, misdelivery or detention of or damage to, goods
(a) delivered to, or in the custody of, the Authority otherwise than for the purpose of carriage;
(b) accepted by the Authority for carriage, where such loss, misdelivery, detention or damage occurs otherwise than when the goods are in transit, except when such loss, misdelivery, detention or damage is caused by want of reasonable foresight and care on the part of the Authority or any servant of the Authority. There is a proviso to this section giving to the defendants absolute discharge from responsibility in the circumstances therein described.
The defendants do not rely on any of the circumstances described in the proviso and these are therefore not now relevant for consideration. It is manifest that the relevant portion of section 91 gives a qualified discharge to the defendants in the circumstances described therein, i.e. “except when such loss, misdelivery, detention or damage is caused by want of reasonable foresight and care on the part of the Authority or any servant of the Authority.” Clearly, what the section states will disentitle the defendants from relying on the protection afforded by it is “want of reasonable foresight and care on the part of the Authority or any servant of the Authority”. The provision is analogous to the usual exceptive clauses in charter parties, burglary policies of insurance and similar contracts. On the onus of proof where a claim is made against the bailee or custodians it was decided by the Court of Appeal in the case of The Glendarroch  P.226 that as the loss definitely fell within the exceptive clauses in the charter party, the burden of showing that the defendants were not entitled to the benefit of the exception by reason of negligence lay upon the plaintiffs. See also in this connection Medawar v. Grand Hotel Co.  2 Q.B. 11, also Hurst v. Evans  l K.B. 352 (especially per Lush, J.) at pp.356-357.
In the Bonnington case, supra, it was held in effect that the plain words of the statute had deliberately shifted the onus probandi from the defendants to the plaintiffs. In other words, the statute must be given its plain meaning and not be construed, unless there be justification for such a course, as being merely declaratory of the common law. We point out that in the construction of a statute it is necessary that the words used by the statute should be considered and that the construction should not be based on any assumptions that the statute is merely declaratory of a particular state of things or any existing law. Lord Herschell observed in the case of Bank of England v. Vagliano Bros. [ 1891 ] A.C. 107 at p. 145:-
“If a statute, intended to embody in a code a particular branch of the law, is to be treated in this fashion, it appears to me that its utility will be almost entirely destroyed, and the very object with which it was enacted will be frustrated. The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be ascertained by interpreting the language used instead of, as before. by roaming over a vast number of authorities in order to discover what the law was, extracting it by a minute critical examination of the prior decisions, dependent upon a knowledge of the exact effect even of an obsolete proceeding such as a demurrer to evidence . . .What, however, I am venturing to insist upon is, that the first step taken should be to interpret the language of the statute, and that an appeal to earlier decisions can only be justified on some special grounds.”
We are of the view that on the plain meaning of section 91(a)and (b) the onus is upon the plaintiffs in order to deprive the defendants of the protection afforded them by section 91 to establish want of reasonable fore-sight and care on the part of the Nigerian Ports Authority or its servants, and that in as much as the trial judge held that that onus was on the defendants to prove the contrary, he was in error of law and misdirected himself.
That, however, is not the end of the matter for it remains to consider the effect on the case of such misdirection. The facts proved at the hearing have already been referred to and apart from their failure to prove lack of care and foresight on the part of the defendants, one of the plaintiffs’ witnesses, Bandele Osunde, a Claims Officer attached to the Pan-Alpina World Transport (Nigeria) Ltd., testified to the following effect:-
“Those who keep watch over the warehouse were the servants of the defendants. There were also the defendants’ police at the gate to prevent goods being taken out unlawfully … I had done quite a lot of claiming at the warehouse. The system of delivery is quite adequate to safeguard the goods.”
In his judgment, the learned trial judge found in favour of the adequacy of the precautionary system employed by the defendants and observed as follows:-
“The precautionary system has much to be said in its favour as a protective measure against illegal removal of goods but has the system been effectively carried out by the servants of the defendants whose duty it is to carry out the system effectively? It is clear on the facts and circumstances disclosed in evidence that the system had not been effectively applied.”
With respect, the evidence is to the effect that that was the system employed by the defendants and it was not proved by the plaintiffs, as it should be that the system was not effectively applied. On the proved facts of this case it is manifest that by misdirecting himself on the onus of proof, the learned trial judge had erred in giving judgment to the plaintiffs.
It was argued for the defendants that even if the onus was on them to show lack of negligence they had discharged such onus by giving evidence, which was accepted, of the rather elaborate precautionary system and protective measures employed by them and that even though they were unable to give evidence as to the time when and the circumstances under which the goods were illegally removed from their warehouse, they were still entitled to judgment. For the plaintiffs it was submitted that by failing to account for the loss of the textile goods, the defendants had failed to discharge the onus of proof laid upon them by law.
We need only point out that the submission on behalf of the plaintiffs is not tenable. The case of Bullen v. The Swan Electric Engraving Co. (1907) 23 T.L.R. 258 is on all fours with the present case and the burden of proof was described by the Court of Appeal (per Sir Gorell Barnes, P.) at p. 259 as follows:-
“The plaintiff’s contention was that the defendants must show that the loss happened in some way which they could account for, and that in relation to that particular matter and at that particular moment of time proper care was taken. No authority, had been cited for such a proposition as that. It was enhancing the burden of proof upon a defendant to an absurd extent if he had to prove not only that he had taken every reasonable care but also that he knew how the loss happened.”
We are in agreement with the submissions made on behalf of the defend-ants to the effect that whatever onus of proof lay on them had been discharged on the evidence and that they are therefore entitled to the protection offered them by section 91 (a) and (b) of the Ports Act.
This appeal therefore succeeds and it is allowed. The judgment of the High Court of Lagos in Suit No. LD/570/62 is hereby set aside and the plaintiffs’ case is dismissed. The respondents, that is the plaintiffs, will pay to the appellants, that is the defendants, the costs of these proceedings in the court below fixed at 45 guineas and in this Court fixed at 55 guineas.
Other Citation: (1965) LCN/1294(SC)