Panalpina World Transport (Nig.) Ltd. V J. B. Olandeen International & Ors (2010)

LAWGLOBAL HUB Lead Judgment Report

O. ADEKEYE, J.S.C.

The particulars of claim filed by J. B. Olandeen International Limited on the 19th of September 1990 as plaintiffs before the Federal High Court Lagos reflected a claim brought jointly and severally against the 1st-4th defendants, the owners of G & C Admiral, Masters of G & C Admiral, G & C Africa Line and Grimaldi & Cobelfret West Africa Roro Service, shippers and receivers of a cargo of 196 Bags of Red Chillies from Tin Can Island Port Lagos to Antwerp, Bruxelles on Board G & C Admiral.

The 1st-4th defendants were then sued for a breach of contract particularly based on the alleged negligence of the defendants resulting in the non-delivery of the cargo of Red Chillies to the importers of the plaintiff. The full cost of the goods including the cost of freighting was N229,518.22k. The plaintiff supported this with a statement of claim in which the averments clearly stated the particulars of claim and the particulars of Special Damage. Vide pages 2-6 of the Record.

In paragraphs 6-10 of the statement of claim, the plaintiffs pleaded the role played by Panalpina World Transport Nigeria Limited as agent of the 1st-4th defendants in using the vessel G & C Admiral in transporting the cargo of 196 bags of Red Chillies. Subsequently, the plaintiff on 15/3/91, precisely one year and eight months after commencement of the action before the Federal High Court, filed an application to join Panalpina World Transport Limited as the 5th defendant. The application was moved and granted on the 15th of March 1991. In the order made by court- Panalpina World Transport Nigeria Limited was joined as co-defendant in the suit, all processes of court were served on the company – while it was simultaneously granted 30 days to file its statement of defence. Vide pages 18-19 of the Record. As 5th defendant, Panalpina World Transport Limited filed its statement of defence -vide page 23 of the Record.

The plaintiff filed an application to amend its particulars and statement of claim. In the amended particulars of claim filed on 14/5/91, it alleged breach of contract flowing from non-delivery of 196 bags of Red Chillies and claimed full costs of goods including the cost of freighting and general damages, loss of business totaling N1,469,518.22k. He gave the particulars of special damage in the amended statement of claim. The plaintiff pleaded that when the goods were delivered late and consequently rejected by the Belgian importers, the 5th respondent admitted the negligence of the defendants and offered to find buyers for the cargo of Red Chillies on behalf of the plaintiff. By a letter dated the 29th of May 1989, the 5th defendant authorized the plaintiff, through its bankers, to release its shipping documents. The plaintiff complied with the directive and on the 6th of June 1989, the plaintiff’s bankers sent a telex to their London office directing that all shipping documents in the transaction be released to Panalpina World Transport S.A. Hoor Derlanna. Vide pages 12-17 of the Record.

The 1st-4th defendants filed their statement of defence on 11/2/91. They denied therein paragraphs 13.14 and 15 of the statement of claim and averred that Panalpina World Transport (Nig.) Ltd. was an agent of the plaintiff in the cargo freight transaction as well as an agent of the 1st-4th defendants. The alleged offer of Panalpina to find alternative buyer for the plaintiff’s cargo was not with the knowledge, instruction or consent of the defendants but was done if at all, by Panalpina as agent of the plaintiff.

In the statement of defence filed by the 5th defendant, Panalpina World Transport Limited – it denied paragraphs 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18 of the statement of claim. Vide page 23 of the Record. However in the court proceedings of the 4th of July 1999, immediately after recording the appearance of counsel, the court suo motu struck out the name of the 5th defendant – the appellant in this appeal as a party in the suit before the trial court. The court’s order to that effect reads: –

“Having read the amended statement of claim of the plaintiff and particularly the admitted fact by the plaintiff in para 6 thereof that the 5th defendant joined by order of court was an agent of disclosed principals i.e. the defendants, the plaintiff has no cause of action against the 5th defendant. The plaintiff has already sued the disclosed principals. In the circumstance the court suo motu hereby strikes out the name of the 5th defendant with N100.00 costs against the plaintiff in favour of the 5th defendant.”

The matter proceeded to trial thereafter. The plaintiff’s grouse before the trial court was in respect of the shipment of the container of 196 bags of red chillies which was carried on Board MV G & C Admiral from Tin Can Island Port Lagos to Antwerp-Belgium. The plaintiff alleged that though Panalpina World Transport Nigeria Ltd, assured him that the vessel G & C Admiral was an express cargo which would arrive Antwerp 14 days from the 14th of February 1989, the same did not arrive there until the 6th of April 1989 – two months after the shipment. The plaintiff’s client rejected the cargo. Panalpina offered to find a buyer for the cargo of red chillies thereafter. The company requested the plaintiff to authorize its bankers to release the shipping documents to it to enable it effect the sale of the cargo. Though the shipping documents were released to the appellant by the plaintiff’s bank, the appellant did not sell the cargo. The plaintiff as a result suffered loss and damage. The plaintiff’s suit was dismissed by the trial court. The plaintiff aggrieved by the decision of the trial court, filed an appeal against the judgment. The plaintiff as appellant before the Court of Appeal filed an application to join Panalpina World Transport (Nig.) Ltd. as a party to the appeal. On 10/6/96, the Court of Appeal refused the application on the ground that there was no issue in the appeal relating to Panalpina.

In refusing the application, the lower court said on page 66 of the Record that –

“The Court of Appeal will not exercise its discretion to permit a person to be made a party to an appeal or direct that notices be served on such person pursuant to Order 3 Rule 6 (1) of the Court of Appeal Rules if it is obvious that he would in no way be affected by the appeal and that there is no issue in the appeal relating to him or on which he should be heard before a decision is made. In this case the first issue for determination not being a valid issue and there being no other issue in the appeal that concerns Panalpina, there would be no justification to order that Panalpina be made a party to the appeal.”

The plaintiff/appellant filed another application on 9/11/98 to join Panalpina to the appeal again before the same Court of Appeal. Prior to the application, it filed two additional grounds of appeal. Panalpina World Transport (Nig.) Limited filed a counter-affidavit to the said motion and exhibited the earlier ruling of the court refusing the previous application to join the appellant as a party to the appeal. The learned justices of the Court of Appeal granted the application thereby joining Panalpina as a party to the appeal in its considered Ruling delivered on 2/11/2000. Being aggrieved by the Ruling, Panalpina henceforth to be referred to as the appellant approached this court for a review of the application. Notice of appeal was filed. Briefs were exchanged by the parties in the appeal.

At the hearing of the appeal, the appellant raised four issues for determination in the appellant’s brief filed on 13/5/04 as follows –

(1) Whether the appellant was originally party to the proceedings at the trial court and could therefore be validly joined as a party to the case by the Court of Appeal on 2/11/2000 when it was clear to the said court that the joinder would have the effect of taking away the appellant’s accrued statutory right of defence in the matter.