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Home » Nigerian Cases » Supreme Court » Nigerian Ports Plc V. Beecham Pharmaceutical Pte Ltd & Anor (2012) LLJR-SC

Nigerian Ports Plc V. Beecham Pharmaceutical Pte Ltd & Anor (2012) LLJR-SC

Nigerian Ports Plc V. Beecham Pharmaceutical Pte Ltd & Anor (2012)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C. 

This appeal is brought against the judgment of the Lagos Division of the Court of Appeal in which the lower Court affirmed the judgment of the Federal High Court, Lagos presided over by Jinadu, J.

About November, 1993 the 1st Respondent, a Pharmaceutical Company, incorporated in Singapore with an address within jurisdiction at Km 16 Ikorodu Road, Ojota, Lagos, shipped a consignment of five containers of pharmaceutical products from Singapore to the 2nd Respondent, also a Pharmaceutical Company incorporated in Nigeria with offices also at Km 16, Ikorodu Road, Ojota, Lagos.

The appellant, a statutory body, was a bailee for reward in respect of the five containers. Four of the five containers were duly cleared and delivered to the 2nd Respondent. However, the container with the number KNLU 318007-8 was alleged to have been broached while in the custody of the appellant in January 1994. There were correspondences between the parties on the loss of the contents of the container No. KNLU 31800-8 and after the conclusion of Police investigation in the matter, the Respondents sued the appellant claiming as follows:

“(a) The sum of N4,785,905.45 (Four million seven hundred and eighty-five thousand nine hundred and five naira forty-seven (sic) kobo) being the value of 87 cartons of pharmaceutical products belonging to the plaintiffs lost in the custody of the defendant.

(b) N500,000.00 being general damages for the loss of the plaintiffs goods which loss was occasioned by the negligence of the defendant.

(c) Interest on the composite sum at the rate of 21% per annum from November 28, 1993 until judgment and thereafter at the rate of 12% per annum until the sum is paid.

(d) Costs.” (see page 15 of the record).

In his judgment the learned Judge, Jinadu, J. after a review of the entire case, concluded as follows:

“I therefore find and hold that the plaintiffs have been able to prove their case on the balance of probabilities and that they are therefore entitled to judgment. Accordingly judgment is hereby entered for the plaintiffs in the sum of N4,785,905.45. The plaintiffs have been unable to prove any special damage and the interest claimed and the two heads of claim are hereby rejected.” (See page 116-117 of the record).

Appellant appealed to the Court of Appeal, Lagos Division. The lower Court, in its judgment, concluded thus:

“Appeal dismissed while judgment of learned trial Judge affirmed with N10,000 costs to the respondents.” (See page 277 of the record).

Against the said judgment, Appellant appealed to the Court on six grounds hereunder, reproduced shorn of their particulars:

“1. The learned Justices of the Court of Appeal erred in law when they dismissed the appeal of the Appellant in favour of the Respondents without taking cognizance of the lack of jurisdiction of the Court to hear the matter, which rendered the whole proceedings and judgment a nullity.

  1. The learned Justices of the Court of Appeal erred in law when they came to the conclusion that the doctrine of res ipsa loquitur applies to the Respondent’s claim before the trial Court.
  2. The learned Justices of the Court of Appeal erred in law in affirming the Judgment of the trial Court in favour pf the Respondents as per its claim for the sum of N4,785,905.45 without a proper consideration of paragraph 6 of the appellant’s amended statement of defence.
  3. The learned Justices of the Court of Appeal erred in law when they affirmed the trial conclusion that the Bill of Lading in its role as a receipt was evidence of the truth of the statement contained in it and therefore held that the plaintiffs were entitled to judgment against the Defendant.
  4. The learned Justices of the Court of Appeal misdirected their-selves on the law when they affirmed the wrongful ejection of the clear report of findings which evidence if it had been received would have substantially affected the case of the Appellant but which rejection has occasioned substantial injustice to the Appellant.
  5. The judgment is against the weight of evidence.” (See pages 282-284 of the record).

In compliance with the rules and practice of the Court, learned Counsel for the parties filed and exchanged briefs of argument. In the Appellant’s brief, its learned Counsel distilled the following two issues from the six grounds of appeal:

“(i.) Whether the Court of Appeal properly appreciated the evidence adduced at the trial Court while relying on the decision in Nigerian National Shipping Line v. Gilbert Emenike (1987) 4 NWLR (Pt.63) at 77 in coming to the conclusion as to the precise date of the accrual of the Respondents’ cause of action.

(iii) Whether the Court of Appeal properly considered the doctrine of res ipsa loquitur vis-a-vis the provisions of Section 66 (2) (e) of the Nigeria Ports Decree No. 74 1993, thereof which clause is in respect of limitation of liability, wherein no liability in the circumstances of this suit can be ascribed to the Appellant.”

Learned Counsel for the Respondents framed the following four issues from the Appellant’s six grounds of appeal:

“(1) Does the provision of Section 72(1) of the Nigeria Ports Act No. 74 of 1993 bar the Respondents from instituting and maintaining the suit.

(2) Was the Court of Appeal right in holding that the learned trial judge was correct in holding that the Appellant was negligent and liable for the loss of the Respondents goods delivered into its custody.

(3) Was the Court of Appeal right in affirming the Learned Trial court’s reliance on the Bills of Lading as evidence against the Appellant of the quantity of goods received into Appellant’s custody

  1. Was the Court of Appeal right in affirming the refusal of the Learned Trial Judge to admit in evidence the clean report of findings If yes, can the clean report of findings properly be considered in determining the quantity of goods delivered into Appellants’ custody

I have considered the substance of the two issues in the Appellant’s brief and the four issues formulated by learned Counsel for the Respondents. In my humble view, Respondents’ issues 1 and 2 can be incorporated into the appellant’s issue 2, leaving appellant’s issues 1 and 2 and Respondent’s issues 3 and 4

The four issues from the two briefs are re-numbered thus:

“1. Whether the Court of Appeal properly appreciated the evidence adduced at the trial Court while relying on the decision in Nigerian National Shipping Line v. Gilbert Emenike (1987) 4 NWLR (pt.63) at 77 in coming to the conclusion as to the precise date of the accrual of the respondents’ cause of action.

  1. Whether the Court of Appeal properly considered the doctrine of res ipsa loquitur vis-a-vis the provisions of Section 66 (2) of the Nigeria Ports Decree No.74 of 1993, thereof which clause is in respect of limitation of liability, wherein no liability in the circumstances of this Suit can be ascribed to the Appellant. (This incorporates Respondents’ issues 1 and 2).
  2. Was the Court of Appeal right in affirming the learned trial Court’s reliance on the Bills of Lading as “evidence against the Appellant of the quantity of goods received into Appellant’s custody
  3. Was the Court of Appeal right in affirming the refusal of the learned trial Judge to admit in evidence the clean report of findings. If yes, can the clean report of findings properly be considered in determining the quantity of goods delivered into Appellant’s custody” (Issues 3 and 4 herein are issues 3 and 4 in the Respondents’ brief).

I will determine the appeal on the four issues above.

In issue one derived from ground one of the grounds of appeal in his brief, learned Counsel for the Appellant dealt at length with the date of accrual of the Respondents’ cause of action. He reviewed the following cases relied on by the lower Court: Nigerian Ports Authority v. Ajobi (2000) 13 NWLR 192 at 200-201; Sanda v. Kukawa Local Government (1991) 2 NWLR (Pt.174) 379 at 388; Jallco Ltd v. Owoniboys Technical Services Ltd (1995) 4 NWLR (Pt.391) 534 at 547 and Nigerian National Shipping Line v. Gilbert Emenike (1981) 4 NWLR (Pt. 63) 77 at 86.

From his review or the authorities, learned counsel concluded that in determining the accrual of the cause of action it has to be ascertained that:

(i) there is in existence a person who can sue;

(ii) there is another who can be sued;

(iii) all the facts had happened which are material to be proved to entitle the plaintiff to succeed.

Learned Counsel then concluded that the cause of action in this case accrued on the 19th January 2004, the date on which the appellant was served with a letter informing it of the broaching of the Respondents’ container. He contended that the fad of broaching the container means that the contents thereof were either stolen or pilfered but not lost as in Emenike’s case (supra) relied on by the Court below.

Learned Counsel cited and relied on s.72 (1) of the Nigerian Ports Decree No. 74 of 1993 and contended that the suit commenced on 24th March 1995 was filed about two months after the 12 months prescribed in the said section. He urged the Court to resolve and allow the appeal on issue one.

See also  F.S.B. International Bank Ltd. Vs Imano Nigeria Ltd. & Anor.-2000 LLJR-SC

In issue 2, culled from grounds 2, 3 and 4 of the grounds of appeal, learned Counsel for the Appellant submitted that the appellant at the trial Court and at the Court below was able to discharge the onus placed on it, as statutory bailee for reward to establish that there was no negligence or default on its part. Learned Counsel referred to page 252 of the record wherein the Court below reviewed the concept of res ipsa loquitur as defined in the Black’s Law Dictionary, 5th Edition at page 1173.

He said that the Court below agreed with learned Counsel for the parties on the issue of bailment and the proposition of law as stated in Chitty on Contracts, 27th Edition to the effect that the bailee is normally under an obligation to return the bailed chattel to the bailor at the end of the period of bailment, unless he can show good cause for not returning the chattel.

He remarked on the fact that the Court below agreed with learned Counsel for the appellant that the learned trial Judge erred on the effect of amendment of the pleadings. He referred to Sneade v. Wortherton etc & Co (1904) 1 QB 207; Agbahomovo v. Eduyegbe (1999) 3 NWLR (Pt.594) 17 at 186-187 and Ijade v. Ogunyemi (1986) 9 NWLR (Pt.470) at 17 at 31 para. E. Learned Counsel submitted that contrary to the authorities above and the agreement of the Court below with the learned counsel for the appellant on the effect of amended pleadings on the determination of the case, the Court below held that the trial Judge was right in his decision that the doctrine of res ipsa loquitur operated against the appellant.

Counsel referred to page 245 lines 13-17 of the record and complained that the lower Court accepted that the appellant’s liability is by statute, but failed to consider the statute in its judgment. He contended that the application of res ipsa loquitur to the facts of this case and the evidence of the parties will demonstrate that the appellant discharged the onus placed on it by the said doctrine. He argued that even though the containers were put into the custody of the appellant, the respondents at their request were allowed to hire their own private security to keep vigil on the container allegedly broached.

He bemoaned the rejection of the evidence on the private security made by the parties adding that the Court did not exercise its discretion in accordance with common sense and justice. He relied on Olumesan v. Ogundepo (1996) 2 NWLR (Pt.433) 628 at 647-648. He argued that the subsequent security arrangement by the parties varied their contract and that in any case section 66 (2) (e) of Decree No. 74 of 1993 protects the appellant from the Respondent’s claim. He urged the Court to examine the conclusions and inferences drawn by the Courts below as the inadequacies in the two Courts below rendered the judgment perverse.

He relied on Ekwealor v. Obasi (1990) 2 NWLR (Pt.131) 231 at 269 paras. A-B. He referred to the evidence of DW1 at page 50 of the record which he said was not challenged and paragraph 11 of the amended statement of defence and submitted that only two items- Amoxil and Augmentin were submitted for pre-shipment inspection and eventually shipped contrary to what was contained in the bill of lading which documented three items – Amoxil, Augmentin and Ampicillin.

He invoked the provision of S.149 (d) of the Evidence Act Chp.112 LFN 1990 in respect of the clean report of findings which he said was withheld by the Respondents. He urged the Court to allow the appeal on issue 2. He urged the Court to allow the appeal and set aside the judgment appealed against.

As I indicated earlier in the judgment, Respondents’ issues 1 and 2 are subsumed in Appellant’s issue 2.

In his reply, learned counsel for the Respondents, in issue one on S. 72 (1) of the Nigerian Ports Act No. 4 of 1993 argued that reference to 19th January 1994 as evidence of when the cause of action accrued is not tenable as the evidence was not led for the purpose of limitation of action. Learned Counsel contended that s.72 (1) of the Act does not apply as the claim is based on contract of bailment and that even if the Act is applicable the action was filed within the prescribed 12 months of the accrual of the cause of action.

He referred to 13 Halsbury’s Statutes of England 2nd Edn. at page 1182 and 26 Halsbury’s Laws of England 2nd Edn. page 294, paragraph 612 and submitted that the performance or breach of a contract which a public authority has the power, but not the duty to make, is not within the protection of the Act. He relied on Board of Trade v. Layzer, Irvine & Co Ltd (1927) AC 610 applied by the Supreme Court in Jallco Ltd v. Owoniboys Technical Services Ltd (1995) 4 NWLR (Pt.391) 534 at 5547 E-G and argued that the cause of action accrued for the purpose of limitation of action on the date it was deemed the goods were in fact lost.

On the evidence with particular reference to Exhibits G-G6; Exhibit H and Exhibit E, he argued, it could be said that the cause of action accrued on 7th July 1994 on the Respondent’s receipt of Exhibit G6 or on 16th September, 1994 when the Police Investigation Report (Exhibit E) was made. He contended that the Suit commenced on 24/3/95 was commenced within the 12 months prescribed in s.22 (1) of the Act.

In issue 2 on the finding by the trial Court, affirmed by the Court below, that the appellant was negligent and so liable for the loss of the respondents’ goods, learned Counsel said that the clean report of finding was rejected because it was not pleaded as shown at page 57 of the record. Based on the rejection of the clean report of finding, learned Counsel argued that the issue of the number of items submitted for inspection was not properly raised and could not have been received in evidence.

On Exhibit J, the Terminal Delivery Order, he argued that the trial Court considered and rejected the evidence. He referred to page 114 of the record and contented that the finding of the trial court on Exhibit J is a matter of evaluation of evidence and not a consideration of an issue. Learned Counsel argued that in bailment the mere fact of failure to deliver the goods to the Respondents was prima facie evidence of negligence and the onus is on the appellant to satisfy the Court that the loss of goods was not due to neglecce, default or misconduct on the part of the appellant.

He relied on Kate Ike v. Mangrove Engineering (Nig) Ltd (1985) 5 NWLR (Pt.41) 350 at 359 D-H; Replying on Ibekandu v. Ike (1993) 6 NWLR (Pt.299) 287 at 297 B-D and contended that having pleaded res ipsa loquitur no proof of appellant’s negligence is required of respondents beyond the loss of the goods.

On the issue of private security arrangement, he said the matter was pleaded midway into the testimony of the evidence of DW1 and that the respondent did not have the opportunity of meeting the allegation. He urged the Court to invoke S. 149 (d) of the Evidence Act for failure of the appellant to provide evidence of application and approval in respect of the private security.

Even if there was private security as contended by the appellant, learned Counsel argued, there was no evidence that the appellant was relieved of its duty of providing security for the respondents’ goods. He referred to the evidence of DW1 at page 50 and page 62 of the record and concluded that the appellant abdicated its responsibility as bailee to secure the respondents goods under its custody. He argued that s.66 (2) (e) of the Nigerian Ports Act does not absolve the appellant from liability for the loss of the goods in its care.

In issue 3 on the bill of lading as evidence of the quantity of goods in the custody of the appellant, learned Counsel submitted that nothing in the record suggests that the trial Court construed the bills of lading as conclusive against the appellant. He referred to page 114 of the records. He referred to Broadline Enterprises Ltd v. Montorey Maritime Corporation (1995) 19 NWLR (Pt. 417) 1 and argued that in a bailment, a bill of lading is prima facie evidence of the goods delivered to a bailee.

He urged the Court to hold that the bill of lading was prima facie evidence against the appellant of the receipt of goods stated thereon and the onus is on the appellant to adduce credible evidence to rebut the presumption in Exhibits A-A1.

In issue 4 on the rejection by the trial Court, and affirmation of the rejection by the lower Court, of the clean report of findings, Counsel said that the document was not pleaded and when the statement of defence was subsequently amended the clean report findings was not tendered, hence the trial Court did not give probative value to the evidence of DW1 relating to the clean report findings. He argued that the Court cannot rely on the contents of a document it had rejected. He relied on UBN v. Ozigi (1994) 3 NWlR (Pt.333) 385 at page 399 E; ACB Ltd v. Gwagwada (1994) 5 NWLR (Pt.342) 25 at p.31D. He urged the Court to dismiss the appeal with costs.

See also  Kano State Urban Dev. Board Vs Fanz Construction Co. Ltd. (1990) LLJR-SC

I have summarized the submission of learned counsel for the parties in issues 1 and 2 and that of learned Counsel for the Respondents on issues 3 and 4 in the Respondents’ brief, on which learned Counsel for the appellant did not reply by way of reply brief. I pause here to add that issues 3 and 4 in the Respondents’ brief related to Grounds 4 and 5, respectively, of the appellant’s grounds of appeal. May be I should re-emphasize the need for learned Counsel to indicate the ground or grounds of appeal from which an issue for determination is derived. I will resolve the four issues seriatim.

Issue 1 centres on the lower Court’s application of the decision in Nigerian Shipping Line v. Gilbert Emenike (1987) 4 NWLR (Pt. 63) at page 77 in the determination of the precise date of the accrual of the Respondents’ cause of action. Both learned counsel examined the meaning of cause of action as defined by various decided cases.

The phrase “cause of action”, connotes the totality of all material facts necessary to establish a legal right in a particular case. See Rosenthan v. Alderton & Sons (1946) KB 374.” The term “cause of action” as has been stated in Read v. Brown (1888) 22 QBD 128 at 131, per Lord Esher M.R. denotes every fact (though not every piece of evidence) which it would be necessary for the plaintiff to prove, if traversed, to support his right to the judgment of the Court,” See Lasisi Fadare & ors v. Attorney-General of Oyo State (1982) 4 SC 1 at 6-7 per Aniagolu, JSC (May the Good Lord rest his soul). See also Trower & Sons Ltd v. Ripstein (1944) AC 254 at 263 per Lord Wright.

Section 72 (1) of Nigeria Ports Decree (now Act) No. 74 of 1993, relied on by learned Counsel for both parties provides:

“When a suit is commenced against the company or an employee of the Company … the suit shall not lie or be instituted in any Court unless it is commenced within 12 months next after the act, neglect or default complained of, or, in the case of a continuance of injury or damage within twelve months next after the ceasing thereof”

Now the question is at what point in time, in the words of Lord Esher M. R. in Read v. Brown (supra) adopted by Aniagolu, JSC, in Lasisi Fadare & ors v. A-G Oyo State (supra) did every fact or the last of the acts (though not every piece of evidence) which it would be necessary for the plaintiff to prove, if traversed, to support his right to the judgment of the Court occur.”

From the facts of the case and as agreed upon by the parties, a formal complaint of the broaching of the container was made in writing by the 2nd Respondent on 13th January, 1994. This complaint of the 2nd Respondent sparked off a series of correspondences involving the parties herein as well as third parties, culminating to Exhibit E on the letter head of Nigerian Ports Police. It is captioned “Police Investigation Report Re: Case of Broaching and Stealing from Containers No. KNLU 318007-8

In paragraph 4 of the Report Exhibit E it was stated inter alia:

“4. From the foregoing report there is no doubt that the container was broached and the aforementioned items stolen …”

This report Exhibit E was made on 16th September, 1994. The matter was under investigation by the appellant who made several requests on the Respondents for documents to aid their investigation. The essence of the investigation embarked upon by the appellant and the police was to ascertain whether in fact the act complained of by the 2nd Respondent occurred. If at the end of the investigation it was discovered that the container was actually returned intact to the Respondents, or that it was misplaced or stolen and recovered and returned to the Respondents, would the Respondents have a cause of action as defined by the various authorities to institute the action claiming the value of the contents of the container

I am constrained to answer the question in the negative. Since the matter was investigated by the appellant and the Police, the result of the investigation is one of the totality of the facts the Respondent would have to prove to be entitled to the judgment of the Court. It is my view that based on the peculiar facts and circumstances of this case, the cause of action occurred on 16/9/94, the date of the Police Report Exhibit 5 which proved the veracity of the Respondent’s complaint.

On the issue of accrual of cause of action, this case cannot be distinguished from Emenike’s case (Supra) in which it was held that where the loss of goods giving rise to the cause of action is being investigated, as is the case herein, the cause of action would only accrue for the purpose of limitation statute after the conclusion of the investigation and the result is known.

It does appear to me from the record that the appellant was deliberately tardy in its correspondences with the respondents in the hope that by so doing the statute of limitation (s.72(1) of the Act No. 74 of 1993) would run to the detriment of the Respondents.

On the facts of this case, I hold the considered view that the last of the totality of the material facts which the Respondents need to establish to entitle them to the judgment of the trial Court occurred on 16/9/94 in the form of the Police Investigation Report, Exhibit E. Consequently, the action initiated by the Respondents on 24/3/95 was commenced within the 12 months prescribed in the limitation provision in s.72 (1) of the Nigeria Ports Decree (now Act) No.74 of 1993. I resolve issue 1 in favour of the Respondents and against the appellant.

Issue 2 revolves on the construction of the doctrine of res ipsa loquitur in the light of section 66 (2) (6) of the Nigeria Ports Decree (Act) No. 74 of 1993. Res ipsa loquitur, a latin Phrase means “the thing itself speaks, or the thing done or the transaction speaks for itself.” See Trayner’s Latin Maxims Fourth Edition page 298.

“This maxim is applicable in action for injury by negligence where no proof of negligence is required beyond the document itself, which is such as necessarily to involve negligence… It ought not to be applied unless the facts proved are more consistent with negligence in the defendant than with a mere accident; nor ought it to be applied to evidence of an unexplained accident, if the evidence is as consistent with the cause of the accident having been the victim’s own negligence, as with its having been that of the defendant.” (See Advanced Law Lexicon, 3rd Edition Reprint 2009, page 4089.)

See also Onwuka v. Omogui (1992) 3 NWLR (Pt.236) 393 at 415 where the phrase was defined to mean:

“…that an accident may, by its nature be more consistent with its being caused by negligence for which the defendant is responsible than other causes, and that in such a case the mere fact of the accident is prima facie evidence of such negligence. In such a case, the burden of proof is on the defendant to explain and show that it occurred without fault on his part.”

The res speaks in circumstances where the relevant facts stand unexplained and the natural and reasonable, as opposed to conjectural, inference from the facts shows that what happened is reasonably to be attributed to some act of negligence on the part of the defendant, or some want or reasonable care in the circumstances.

I agree with learned Counsel for the appellant that res ipsa loquitur is a rebuttable presumption which arises upon proof that the instrumentality causing the injury complained of was at the material time in the defendant’s exclusive control.

Learned Counsel argued that in view of the private security arrangement the respondents made with the consent and approval of the appellant, the doctrine is inapplicable to this case. What is the effect of the alleged private security on the contractual obligations of the parties to the contract of bailment

There is no evidence in the proceedings of a review of the financial obligation of the respondents as bailers to the appellant as bailee for reward. If the container was at the material time not in exclusive control of the appellant as a result of the private security provided by the respondents, there would have been no economic sense for the respondents to fulfill in full their obligation to the bailee under the contract of bailment.

See also  Joseph Idowu V. The State (2000) LLJR-SC

At page 46 of the record, the PW1 under cross-examination:

“…agree that the plaintiff has its security representative at the location where these consignment was placed in the custody of the defendant. Re-examined the witness said:

‘The plaintiff’s securitymen were there just to monitor the position of the consignment but not for the purpose of providing security for the consignment. By monitoring the position I mean just to see how things go at the port.”) .

In his own evidence under cross-examination, the DW1 stated, inter alia:

“I agree that from the time the container landed and until delivery the container was under our custody but not in our care as it was under the watchful eyes of the plaintiff’s security men… I agree that neither the Police Report nor our correspondences with the plaintiff show the existence of any special security arrangement.” (See page 62 of the record.)

Evidence of the special security arrangement heavily relied on by the appellant is less than satisfactory. If there was in fact such arrangement upon which the liability vel non of the appellant could be determined, why was it not mentioned and the particulars thereof stated in the Police Report and the appellant’s correspondences with the respondents

The said particular, if tendered, would have been useful in determining if, and to what extent and at what point in time, the Respondents assumed the responsibility for which they engaged the services of the appellant as a bailee for reward. Perhaps, the evidence, if produced, would have been unfavourable to the appellant who withheld it. See s.149 (d) of the Evidence Act. Appellant who relied on the private security arrangement was duty bound to produce the terms of the private security arrangement it relied on.

DW1 claimed that: “… the container was under the custody but not in our care..” What is the difference between the meanings, purports and connotations of the common words “custody” and “care” In my view, the two words are synonymous. The Black’s Law Dictionary, 9th Edition at page 240 explains the meaning of the word “custody” as:

“The care and control of a thing or person for inspection, preservation or security.” It defines the word “care” as “serious attention, heed. Under the law of negligence or of obligation, the conduct demanded of a person in a given situation. Typically, this involves a person’s giving attention both to possible dangers, mistakes and pitfalls and to ways of minimizing those risks.” See page 240 (supra).

The play on words and semantics will not avail the appellant as the two words mean the same thing – the performance of the duty for which the respondents hired the services of the appellant as a bailee for reward. There is nothing in the evidence to suggest that the respondents having hired the services of the appellant as a bailee for reward, assumed, at any time, the whole or part of the responsibility for which they hired the appellant either with or without a corresponding alteration in the terms of the bailment. There is no evidence of any variation in the terms of the contract between the parties.

Now I will deal with s.66 (2) (e) of the Act under which the appellant claims no liability can be ascribed to it. It is hereunder reproduced:

“S.66 (2): The company shall in no case be liable under subsection (1) of this Section for a loss, misdelivery, detention or damage arising from:

(e) an act or omission of the consignor, consignee or depositor or of the servant or agent of any such person.”

The obligation assumed by the appellant is based on the contract of bailment it voluntarily entered with the respondents. The above limitation provision, as the one in s.(1) of the Act will be construed strictly against the appellant who seeks to ‘benefit therefrom. Section 71 (1) or s.66 (2) or both sections cannot exonerate a public authority that engages in contract outside its duty assigned to it by the Statute that created it. See Compton v. West Hom CBC (1939) 1 Ch 7711 at 778; 1939 LL ER at page 199 cited by learned Counsel for the Respondents.

The Power of the appellant to act as bailee for reward under S. 3 (1) (2) (c) of the Act does not impose a duty on the appellant to engage in a contract of bailment for reward. It is a power it can exercise or refuse to exercise without liability under the law that created it. Since the contract of bailment for reward is not a duty imposed by statute on the appellant, but a power it can exercise if it so desires, it has no protection under s.72 (1) or s.66 (2) (e) of the Act if it chooses to exercise the power so donated to it by the Act. I resolve issue 2 against the appellant.

As I indicated earlier in the judgment, Respondents’ issues 3 and 4 were culled from grounds 4 and 5, respectively, of the Appellant’s grounds of appeal. In his reply brief, learned Counsel for the appellant concentrated exclusively on Respondents’ response to issue 1 in the appellant’s brief. Learned Counsel for the appellant had an opportunity to reply to the Respondents’ argument on issues 3 and 4 but he chose not to do so. I will therefore resolve the issues on the respondents’ submission alone, even though the appellant is deemed to have conceded the argument thereon.

Issue 3 is on the bills of lading. The trial Court accepted, and the lower Court affirmed, that the bills of lading constitute evidence against the appellant of the quantity of goods received by the appellant into its custody. A bill of lading is defined as a writing signed on behalf of the owner of the ship in which goods are embarked, acknowledging the receipt of the goods and undertaking to deliver them at the end of the voyage, subject to such conditions as may be mentioned therein. See Blackburn One Sales, 3rd Edition, page 421.

A bill of lading may be considered under these three aspects:

(1) as a receipt given by the master of a ship acknowledging that the goods specified in the bill have been put on board:

(2) as a document containing the items of the contract for the carriage of the goods agreed upon between the shipper of the goods and the ship-owner (whose agent the Master of the ship is); and

(3) a document of title to the goods of which it is the symbol.

“It is by means of this document of title that the goods themselves may be dealt with by the owner of them while they are still on board ship and upon the high seas.” See William R. Anson, Principles of the Law of Contract, p.380 (Arthur L. Carbin Ed.) for the definition above.

The bill of lading is prima facie evidence of the Respondents’ goods delivered to the appellant as the Respondents’ bailee for reward at the end of the voyage. The Court below was right to have affirmed the finding of the trial Court in that regard.

Issue 4 is on the propriety vel non of the affirmation by the Court below of the trial Court’s rejection of the clean report of findings. The clean report of findings was rejected by the trial Court when it was offered as exhibit. This was affirmed by the Court below.

A document that is rejected when it is offered in evidence cannot be of any relevance in the matter. Also contents of a rejected document cannot fare better than the document itself. In the end, both Courts below were left with the bills of lading, Exhibits A-A1 as the evidence against the appellant of the quantity of the Respondents’ goods delivered into the custody of the appellant as a bailee for reward.

The concurrent findings of the two Courts below remain undisturbed in view of the fact that the appellant has not shown that the findings are either perverse, or there is substantial error either in substantive or procedural law which if not corrected, will lead to miscarriage of justice or that there is no sufficient evidence to support the findings. See Lokoyi & Anor v. Olojo (1983) 8 SC 61 at 68; Bankole v. Pelu (1991) 8 NWLR (Pt.211) 23; Njoku ors v. Eme & ors (1973) 5 SC 293 at 306 and Kale v. Coker (1982) 12 SC 252 at 271.

The two issues (3 and 4) which the learned counsel for the appellant is deemed to have conceded for failure to respond to them in his reply brief – see Joseph Ira & 3 ors v. Echenwenchi & ors (1996) 8 NWLR (Pt.468) 629 – are resolved against the appellant.

The four issues having been resolved against the appellant in favour of the Respondents, the appeal is bereft of merit and accordingly it is hereby dismissed. Appellant is to pay costs fixed at N100,000.00 to the Respondents.


SC.206/2005

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