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

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.

The contention made by Messrs Irving & Bonnar was that the plaintiffs had paid £202 odd to Barclays Bank on the 20th June and received the shipping documents, and that at all events from that date the property in the goods had passed to the plaintiffs. It is true that Osman El Tayeb gave his own cheque to the Bank on the 20th June; and it appears from the Bank’s letter of 24th July, 1958 (Exhibit 1) that it was for the 40 cases of gum Luban Ex Toscana. But the fact remains that on the 20th June, after paying the Bank and getting the shipping documents, the plaintiffs wrote Exhibit 3 to the defendants, saying- “The above goods are for our A.A. Abou El Seoud,” whereby they represented to the defendants that the goods were the property of El Seoud. It must be taken that the plaintiffs were clearing the goods as the agents of El Seoud; and, in any case, their correspondence with the Bank does not affect the defendants, who knew nothing about it. What the plaintiffs’ relations were with El Seoud he may have been partner or something else, and, although the cheque was Osman El Tayeb’s, he may have paid the Bank as the agent of El Seoud, with whom they would settle accounts- whether those relations may have been, they were not the concern of the defendants.

I therefore think that the defendants were entitled to detain the goods and ask for payment before releasing them; and I must, with respect, differ from the learned judge, who thought that they had no lien on the ground that there could be no lien on goods which came into the hands of the person claiming the lien for a particular purpose, as in the present case the goods came into their hands because the plaintiffs had asked them to clear the goods at Lagos and to rail them to Kano. It seems to me that when an importer asks a clearing and forwarding agent to clear and forward goods he is sending the shipping documents for an ordinary purpose- the very function of clearing and forwarding agent. On the learned Judge’s view, a clearing and forwarding agent can never have a lien, if a mere request to clear and forward goods oust the lien. But the point does not really arise: for this was a lien by virtue of contract, to which the plaintiffs by their conduct assented and which they did nothing to exclude.

I would allow the appeal, dismiss the claim of the plaintiffs, and award costs to the defendants both here and below; the costs here are assessed at thirty-three guineas, those below are to be taxed.

Other citation: (1960) LCN/0838(SC)