Owners, M.v Gongola Hope & Anor. V. Smurfit Cases Nigeria Ltd. & Anor (2007)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C

In the Federal High Court holden at Lagos and in suit No. FHC/121/90, by an amended statement of claim the plaintiffs’ claim against the defendants were as follows:-

“1. Delivery of all 41 reels of Kraftliner Board 150 GSM 2050 mm directly to the plaintiffs’ factory with all other consequential directions and/or either.

2. Damages for fraud or fraudulent misrepresentation and/or negligence. And/or
3. Payment of the sum of USD 71,446.94 plus interest at the rate of 8% from the 22nd of August, 1990 to the date of judgment and thereafter interest at the rate of 10% until date of payment.
4. The sum of N697,066.81 being the amount specified items 3, 4, 5, 6, 7 and 8 or the particulars listed in paragraph 14 supra.
5. Anticipated loss of profit on use of goods N2,000,000.00 (Two million Naira) if they had arrived and been processed.
6. Further and or other reliefs as the court may deem fit.”

Pleadings were ordered, delivered and amended. Five witnesses testified for the plaintiffs and a number of documentary evidence were tendered. The defendants offered no evidence but rested their case on the evidence led by the plaintiffs. After the addresses of counsel, in his judgment delivered on the 12th day of February, 1997, the learned trial Judge refused the plaintiffs’ claims on the ground that the 1st plaintiff had no locus standi to file the suit because it had lost its right of suit to the 2nd plaintiff by appointing the 2nd plaintiff as its clearing agent for clearing the lost goods. The learned trial Judge also found that the 2nd plaintiff’s claims had become statute barred. He struck out the plaintiffs’ case. The plaintiffs felt unhappy with the situation and appealed to the Court of Appeal on 16 grounds of appeal. The Court of Appeal in its consideration of the appeal before it, in its judgment delivered on the 21st of January, 2002, held per Aderemi, JCA as he then was, which was concurred by Oguntade, JCA as he then was and Chukwuma-Eneh, JCA also as he then was:-

“In the final result and for all the reasons that I have given above, this appeal must be allowed and it is accordingly allowed. The ruling of the court below striking out the entire suit is hereby set aside. In its place is an order entering judgment in favour of the appellants in the following terms –

(a) US Dollar 60,087.07 (sixty thousand eighty seven dollars and seven cents)

(b) N 212,973.46 (Two hundred and twelve thousand nine hundred and seventy three naira forty six kobo only)

The judgment was entered in favour of the 1st plaintiff only against the defendants.

The defendants also felt unhappy with the decision of the Court of Appeal and have now appealed to this court on two grounds of appeal. In his brief for the defendants, the learned counsel stated that the appeal is only against the consequential orders and not against the decision allowing the appeal “per se, but on what appropriate orders should have been made having come to the decision that the case was wrongly struck out.”

The plaintiffs on 1/2/2002, filed an application before the Court of Appeal praying for the variation of the judgment entered on the 21/1/2002 in that “the judgment sum should include interest on the amount adjudged as proved at the rate of 8%, from 22/8/1990 until date of judgment on the 21/1/2002 and thereafter interest at the rate of 10%, until date of payment to 1st plaintiff:” and for also loss of profits. The defendants filed a counter-affidavit in opposition to the motion. In its consideration of the motion, the court below agreed that it made a mistake in not awarding the interest and the loss of profits as claimed and proved, but declined to vary its judgment since at the time of the ruling on the application the appeal had already been entered in the Supreme Court. That was why the plaintiffs also filed a notice of cross-appeal on the omission of the Court of Appeal to enter the full judgment in accordance with the amended statement of claim. Now in this judgment, the defendants are hereinafter referred to as the appellants or the cross-respondents as the case may be while the plaintiffs are referred to as the respondents or the cross-appellants. I shall first deal with the appeal as filed by the appellants.

Appellants’ appeal

In their notice of appeal, the appellants filed the following two grounds of appeal:-

“(1) The Court of Appeal erred in law in awarding damages in excess of the limitation imposed by the Bill of Lading

Particulars