Umarco Nigeria Plc V. Ofeelly Agro-farms & Equipment Company Limited & Anor (2016)

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CHINWE EUGENIA IYIZOBA, J.C.A. 

 This is an appeal against the judgment of Abutu J of the Federal High Court, Lagos Division delivered on the 1st day of March 2005.

By a civil summons dated 28th October, 1997, the 1st Respondent Ofeelly Agro-Farms & Equipment Co Ltd commenced an action against the 2nd Respondent, Nedlloyd Lijnen B.V. Rotterdam (owners of the four mentioned vessels) and the Appellant Umarco Nigeria Plc, jointly and severally claiming, inter alia, the sum of US$558,000.00 (Five Hundred and Fifty Eight Thousand United States Dollars) or its naira equivalent in the sum of N49,455,500.00 (Forty Nine Million Four Hundred and Fifty Five Thousand Five Hundred Naira) plus interest, being special and general damages for breach of contract and/or tort of bailment as common carriers and bailees for reward of the 1st Respondent’s 1 x 40 foot container said to contain Automobile packages which the Defendants failed or neglected to deliver or return to the Plaintiff on demand, in consequence whereof the Plaintiff lost their value and suffered enormous losses and damages.

Subsequently,

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by an amended statement of claim dated 31/11/04 and filed same day at Pages 597 – 607 of the Record, the Plaintiff claimed against the Defendants, jointly and severally, inter alia, the sum of US$1,796,087.90 (One Million, seven Hundred and ninety-six Thousand, eighty-seven US Dollars and ninety Cents) or its Naira equivalent of N170,628,350 (One Hundred and Seventy Million Six Hundred and Twenty Eight Thousand Three Hundred and Fifty Naira) plus interest being special and general damages for breaches of bailment, contract, detinue or conversion and negligence as common carriers and bailee for reward of the 1st Respondent’s 1 x 40 feet container said to contain automobile spare parts.

Learned counsel for the Plaintiff stated that the main plank of the 1st Respondent’s cause of action was that a container load of automobile spare parts valued at US$653,420 was delivered to the Defendants in good order and condition for safe keeping and carriage from Buenos Aires, Argentina to Apapa, Lagos. However, the goods were not delivered at the expected time due to the negligence of the Defendants and the Plaintiff suffered not only the value of the lost goods

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but also the potential profit it would have derived had the goods been safely carried to Lagos. Learned counsel alleged that the Plaintiff also incurred significant costs in investigating the whereabouts of the goods.

The Defendants by their further amended statement of defense dated 22/03/04 and filed same date at pages 536 – 540 of the Record denied any negligence, actual fault or privity and averred that the carrying vessel Nedlloyd Recife, encountered heavy weather along the coast of Brazil and the vessel sank with all her cargo off Sao Francisco Do Sul on 2nd March 1996. It was their further defence that the accident resulted from perils, dangers and accident of the sea or act of God. The Defendants also challenged the value of the goods as alleged by the Plaintiff as US$36,000.00 (Thirty Six Thousand United States Dollars and not US$653,420.00 (Six Hundred and Fifty Three Thousand four hundred and twenty United States Dollars). The parties at various times amended their pleadings. The Plaintiff during hearing called three witnesses and the Defendants called one witness. The lower Court in its judgment found both defendants liable in negligence

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and breach of bailment.

Dissatisfied with the judgment, the Defendants filed a Notice of Appeal dated 25th April 2005. The Appellant, however, following the receipt on 2nd April 2005 of the 1st Respondent solicitor’s letter of demand for payment of the judgment sum, instructed a new firm of solicitors to file a separate appeal on its behalf. The notice of Appeal is dated 3rd May 2005 and was filed on the 5th of May 2005.

The parties filed and exchanged briefs of argument. The Appellant’s brief was settled by Dr. Wale Olawoyin and out of the four grounds of appeal in the Notice of appeal he formulated two issues for determination as follows: