Vivian Younger and Bond Ltd V. Osman El-Tayed and Bros (1960)

LawGlobal-Hub Lead Judgement Report

BAIRAMIAN, F.J

This is an appeal by the defendants from the judgment of the High Court of the Northern Region given in suit K/160/1958, on the 21st December, 1959, whereby they were ordered to repay the plaintiffs £281:10s:7d, which the plaintiffs had paid under protest for the release of certain goods. The plaintiffs are a firm in Kano; the defendants carry on business as clearing and forwarding agents at Apapa, and have an office at Kano also: (the correspondence was with their office at Apapa). The defendants exercised the lien under a clause in their conditions for handling goods; the Learned Judge decided that they had no right to do so for a reason which will be discussed later.

The crucial point in the case seems to me to be whether the defendants had a general lien by contract.

The plaintiffs wrote to them on the 20th June, 1948 (Exhibit 3) enclosing various documents and asking them to clear and rail certain goods, saying; “The above goods are for our A.A. Abou El-Seoud.”

The defendants acknowledged receipt by letter, dated the 24th June, 1958 (Exhibit 4), which bears at the foot of it, in clear printed capitals, these words:-

GOODS HANDLED ACCORDING TO CONDITIONS OF OUR ACCEPTANCE NOTE AS DISPLAYED IN OUR OFFICE, COPY OF WHICH WILL BE SUPPLIED ON REQUEST.

The plaintiffs did not ask for a copy. Osman Tayeb’s evidence was, in cross-examination:-

“Never got copy of instructions mentioned at foot of Exhibit 4. I did not ask them for instructions: have dealt with them for 10 years.”

There was no re-examination. On the 15th July, 1958, the defendants wrote a letter (Exhibit 5) advising the plaintiffs that their consignment was due at Lagos about the 1st August. Then, on the 21st July, 1958, they wrote Exhibit 6 to the plaintiffs, telling them about El Seoud’s debt, on account of which they would exercise a general lien under Clause 19 of their Conditions of Clearing, Warehousing and Forwarding; and they enclosed a copy of those Conditions. It was not until the 19th August, 1958, that Messrs Irving & Bonnar, a firm of solicitors, wrote to the defendants a letter (Exhibit 19), in which they made two points:-

(1). that the defendants could not exercise a lien because they were not in possession of the goods, and

(2). because the property in the goods had passed to the plaintiffs not later than the 20th of June.

But the defendants had paid duty on the goods on the 23rd July, before the goods arrived; they arrived on the 1st August; clearance probably took over five days; and the goods came into the defendants’ possession about the 19th of August. Thus, the defendants had acted, before they knew of any objection: (Messrs Irving and Bonnar’s Letter of 19th August was received at Apapa on the 20th or later): the defendants acted on the basis that their conditions of handling goods were accepted by the plaintiffs, who did not give them any cause to think otherwise.

The plaintiffs knew, before June was out, that the defendants would attend to the clearance of the goods; they also knew shortly after mid-July that the defendants were attending to the matter and would see to the clearance of the goods, which would be arriving about the 1st August: Exhibits 4 and 5. The plaintiffs, if they had not had or seen a copy of the Conditions, could have seen them at the defendants’ Kano office, or asked for a copy, which the note at the foot of Exhibit 4, defendants’ letter of 24th June, said would be supplied on request. Plaintiffs’ conduct meant that they, who had been dealing with the defendants for some ten years, knew those Conditions; and the defendants were entitled to act on the basis that the plaintiffs accepted them. Indeed, it is noteworthy that, when Messrs Irving & Bonner wrote their letter of the 19th August (Exhibit 19), they did not say that the plaintiffs had not known of those Conditions, neither did they refer to them, although a copy of them was enclosed by the defendants with their letter of the 21st July (Exhibit 6), in which they told the plaintiffs that they would exercise a lien under clause 19. Osman Tayeb said in his evidence that his clerk would know whether a copy of the Conditions came with that letter, implying that he himself did not see the copy; he was plainly untruthful. I must infer that he was equally untruthful when he implied by his evidence that he had never seen or had a copy of the Conditions.

In his evidence Tayeb also implied that it was his clerk, without instructions, who wrote on the 20th June that the goods were for El Seoud. Tayeb was plainly untruthful.