Asafa Foods Factory Ltd. v. Alraine Nig. Ltd. & The East Asiatic Co. Ltd.

The plaintiff, now appellant, ordered a consignment of 6,691 cartons of Nido Instant Milk Powder from Concom Commercial S.A. (the consignor) of Lucerne Switzerland at a cost of $37.36 per carton, making a total of $249,975.76. The consignment was shipped on board the 2nd defendant’s vessel MS “Fionia” in Hamburg on 17th December, 1986 to the order of Savannah Bank of Nigeria Ltd., Kano branch, the consignee being the appellant. The bill of lading no.408 (exhibit D) listed the details of the consignment in cartons as follows:
Container No.     Seal No.       Quantity
EACD 482853-0     006027        744
EACU 482793-5     006024        744
EACU 481363-3     006025        744
EACD 482705-1     006026        744
EACU 482683-6     006028        743
EACU 482834-0     006029        743
EACU 482816-6     006030        743
EACU 482896-1     006031        743
EACU 482732-3     006032        743
6,691
The consignment landed at the Apapa/Lagos port, the port of discharge. It was then transported by road to Kano between 18th-20th March, 1987 for delivery to the appellant by the 1st defendant, clearing and forwarding agents in Nigeria. It was discovered that of the 6,691 cartons only 6,263 arrived in Kano. There was short delivery of 428 cartons. The appellant eventually claimed damages against the two defendants in an action filed on 11th March, 1988 for shortfall.

P.1

The particulars of damages were stated thus in the amended statement of claim:
(a) Special Damages –
428 cartons of Nido Instant Milk Powder at US $15,990.08
C.I.F. per carton [Exchange rate of N0.6568 to US $1] N24,345.43
(b) General damages N20,654.57
N45.000.00
(c) Interest at 15% p.a. from 13/3/87 till judgment and thereafter at 9% p.a. till payment.
Although pleadings were filed and exchanged, the defendants led no evidence but relying on the case presented by the appellant, made a no case submission and rested on it. On 22nd February, 1991 Odunowo J., who presided over the hearing, refused in a considered judgment to award general damages saying it would amount to double compensation to do so in addition to the special damages.
He therefore made the following decision:
“Accordingly judgment is hereby given in favour of the plaintiff in the sum of N24,345.43 being special damages for the short delivery of 428 cartons of Nido Instant Milk plus interest at the rate of 15% per annum from 13th March, 1987 up till today and thereafter at the rate of 9% per annum until actual payment.”
Costs of N500.00 were awarded against the defendants.
The defendants appealed to the Court of Appeal, Lagos Division and raised two issues for determination namely:
“1. Whether the action against the 2nd defendant/appellant ship owner is time barred, having been commenced more than 12 months after discharge of the cargo from the carrying vessel.
2. Whether the plaintiff/respondent adduced cogent evidence of the stage at which the loss (if any) occurred and whether there were any factors linking either of the appellants with such issue.

P.2

The Court of Appeal ruled in respect of issue 1 against time bar on the ground that there was no evidence as to when the consignment was discharged from the ship.
As regards the second issue, the court held that the appellant failed to establish the liability of either of the defendants for the loss of the goods which it alleged. It allowed the appeal and dismissed the claim. Before arriving at this, the court per Ayoola JCA, who read the leading judgment, observed:
“The Judge did not advert to the pleadings wherein the plaintiff’s case was that the correct number of cartons of milk were delivered to the 1st defendant for transportation to Kano. He did not advert to the fact that the action was founded on two separate and distinct contracts of carriage of goods one by sea and the other by land, and that each of the defendants could only be liable for quantity of goods lost while in its custody. The defendants acting on separate contracts and assuming separate duties of care could not both be liable for the same loss or put otherwise for the same breach.”
The learned Justice later further observed:
“The plaintiff had sued the defendants for breach of contract and in the alternative, in tort alleging negligence. Whichever the cause of action, the plaintiff had to allege and prove that the goods in question came into the custody of the defendants at the relevant point in time and that while still in their several custody part of them was lost as alleged. Even if it had been proved that the goods were delivered to the 2nd defendant to be transported, failure to prove that they were not duly delivered would still be fatal to the plaintiff’s case against the 2nd defendant.”
On further appeal to this court, the appellant has set down four issues for determination as follows:
“1. When does time begin to run for the purposes of a statute of limitation in this case, the Carriage of Goods by Sea Act, Cap. 44, Laws of the Federation of Nigeria, 1990.  (Grounds 1 & 2)

P.3

2. Whether on the preponderance of evidence, the appellant failed to establish their case against either or both defendant/respondents and/or whether the respondents did not have joint custody of the goods at any time. (Grounds 3 & 6)
   3. Whether there has been a misjoinder of parties and/or cause of action, and if yes, whether this was sufficient to defeat the claim.  (Ground 4)
   4. Assuming but without conceding that the liability of the 2nd respondent ceased as ocean carriers when the goods were discharged from the vessel, was the lower court justified to absolve them from liability notwithstanding the alternative head of claim in the tort of negligence made out and established against both respondents?”
   I have to say that issue 1 needs no resolution since it does not arise from the decision of the court below. That court held that the appellant’s claim was not statute barred. The reason for saying so is immaterial for the present purposes since the appellant cannot claim to be aggrieved by the decision on that point so long as the decision was in its favour. If it was not satisfied with the reasons given by the court below and wishes to have a decision in that regard from this court, it would appear this court is being asked for an academic ruling on a point in which there is no live issue as between the parties before the court. This court will not do so. The appellant would have to await a proper occasion when it would come up with a grievance necessitating a decision on the point. That has been the stand of this court which insists that it is essential that a suit or an appeal brought before a court should have the quality of an existence of a matter in actual controversy on any issue between the parties upon which a decision can be taken as a live issue see Akeredolu v. Akinremi (No.2) (1986) 2 NWLR (Pt. 25) 710 at 725; Atake v. Afejuku (1994) 9 NWLR (Pt. 368) 379 at 402. On this same point, Viscount Simon, L. C. observed in SunLife Assurance Company of Canada v. Jervis (1944) A.C. 111 at 113-114inter alia as follows:

P.4

“I do not think that it would be a proper exercise of the authority which this house possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way. If the house undertook to do so, it would not be deciding an existing lis between the parties who are before it, but would merely be expressing its view on a legal conundrum which the appellants hope to get decided in their favour without in any way affecting the position between the parties ……No doubt, the appellants are concerned to obtain, if they can, a favourable decision from this house because they fear that other cases may arise under similar documents in which others who have taken out policies of endowment assurance with them will rely on the decision of the Court of Appeal, but if the appellants desire to have the view of the House of Lords on the issue on which the Court of Appeal has pronounced, their proper and more convenient course is to await a further claim and to bring that claim, if necessary, up to the House of Lords with a party on the record whose interest it is to resist the appeal.”
I shall next consider issue 2 which I believe is sufficient for the resolution of this appeal. The kernel of it is whether on the evidence available the appellant failed to establish its case against either or both defendants. I think it is necessary to set out some relevant averments in the amended statement of claim and the defendants’ response to them.

In paragraphs 2, 3, 4, 5, 6, 7, 8 and 9 the following averments were pleaded by the appellant:
“2. The 1st defendant is also a company incorporated in Nigeria with their offices at 26 creek road, Apapa,Lagos State within the jurisdiction of this Honourable Court, and inter alia operates as clearing, forwarding and shipping agents.

P.5

The 1st defendant were the agents in Nigeria of the 2nd defendant and in that capacity attended the 2nd defendant’s vessel, ‘FIONA’ as her agents on its voyage to Nigeria at all times material to this action.
3. The 2nd defendant is a common carrier and/or bailee for reward and carries on business in Nigeria through its agents, the 1st defendant herein at 26 creek road, Apapa, Lagos State. The 2nd defendant at all times material to this action were the owners/charterer/operators of the MV ‘FIONA’ (hereinafter called ‘the vessel’) the vessel that transported the plaintiff’s goods by sea from the port of Hamburg to Apapa, Lagos.
4. By a valued invoice dated Lucerne the 19th day of December, 1986 and issued by its overseas business partners and/or agents, the plaintiffs were advised to expect a cargo of Nido Instant Milk powder on board the 2nd defendant’s vessel aforesaid. The plaintiff will place reliance on this invoice at the trial of this action.
5. By a contract of affreightment evidenced by and/or contained in a bill of lading no. 408 dated Hamburg 17th December, 1986 and duly signed for and on its behalf, the 2nd defendant contracted to carry a cargo of 6,691 cartons of Nido Instant Milk powder (hereinafter referred to as ‘the goods’) in good order and condition. The said bill of lading shall be founded upon at the trial of this action.
6. The plaintiff was at all times material to this action the owner/consignee of the said goods or alternatively endorsees of the bill of lading aforesaid to whom the property in the goods passed upon or by reason of the said endorsement.

P.6

7. The 2nd defendant duly acknowledged the safe receipt into its custody in good order and condition the plaintiff’s said goods for carriage and delivery in like good order and condition to the plaintiff in Nigeria.
   8. Accordingly, the defendants were under a duty as common carriers and/or bailees for reward, or alternatively expressly or impliedly contracted by the bill of lading aforesaid to deliver the said plaintiff’s cargo in like good order and condition as when shipped.
   9. By yet another but a separate contract, the 1st defendant contracted with the plaintiff for the clearing, discharge and transportation to the plaintiff’s warehouse and/or offices at Kano of all cargoes and/or goods of which the plaintiff is receiver. The plaintiff shall refer to and rely on the terms of such contract as contained in various correspondence exchanged between the 1st defendant and the plaintiff.”
   The 1st defendant admitted all the above averments. The 2nd defendant also admitted all but paragraph 9. It seems to me that with the admission, the implications are clear. I may just point out one, and that is that the 1st defendant is the agent in Nigeria of the 2nd defendant and with the admission of paragraph 9 of the amended statement of claim by the 1st defendant, it binds the 2nd defendant to the consequences of that contract of carriage by road. It is elementary principle of procedure that facts pleaded by one party and admitted by the other will generally need no further proof: see Uwegba v. Attorney-General, Bendel State (1986) 1 NWLR (Pt.16)  303; Edokpolo & Co. Ltd. v. Ohenhen (1994) 7 NWLR (Pt. 358) 511. But there are circumstances in which documents are pleaded and although admitted by the other party, will need to be tendered in evidence in order for the court to be aware of their contents and to give them their proper interpretation.

P.7

In such situations, a party relying on the effect of such documents must not be content with the admission by the other party. He must go further to prove their contents and this is best done by producing the documents themselves or secondary evidence of them. see Kana v. Oyelakin (1993) 3 NWLR (Pt. 282) 399.
In the present case, paragraph 4 was supported in evidence by exhibit C and paragraph 5 by exhibit D. The appellant also pleaded in paragraph 11 as follows:
11. The vessel duly arrived Lagos on or about 4th January, 1987 but notwithstanding that a total of 6,691 cartons of Nido Instant Milk was consigned to the plaintiff and actually loaded and delivered sound to the 1st defendant, the defendants delivered only 6,263 cartons leaving a balance of 428 cartons as undelivered to the plaintiff. The plaintiff shall place reliance on 1st defendant’s way bills nos. 23646-23650 at the trial of this action.”
Commenting in respect of the above averment, the court below said:
“The vessel FIONA duly arrived in Nigeria and was discharged of its cargo. The vessel arrived in Nigeria on 4th January, 1987. The goods were transported to Kano by the 1st defendant as agreed by it and the plaintiff. The plaintiff alleging that the goods short delivered sued the defendants. The action was commenced by the plaintiff on 10th March, 1988. The plaintiff’s case at the trial seemed to have been encapsulated in paragraph 11 of the amended statement of claim …… Had this averment been given due attention and its unmistakable implication adverted to, it would have been clear that there was left no basis for imputing any liability to the 2nd defendant which, as stated in the averment, had delivered ‘sound’ all the goods consigned to the plaintiff to the 1st defendant with which the plaintiff had had a different and separate contract of clearing of goods and carriage of the goods over land, not as an agent of the 2nd defendant but as a principal contracting party in its own right.”

P.8

With the greatest respect, the above observation cannot at all be supported. First, it is obvious to me, having regard to the earlier averments in the amended statement of claim and as rightly submitted by learned counsel for the plaintiff/appellant, that the reference to the” 1st defendant” as I have italicised in the said paragraph 11 which, admittedly, was poorly drafted, is a clerical error which properly should read 2nd defendant. As it is said vitium clerici nocere non debet [A clerical error ought not to hurt]. Second, there is nothing in that paragraph to suggest that it was the 2nd defendant who delivered the goods ‘sound’ to the plaintiff as the court below gratuitously imported into it. Third, to say, as the court below did, that the 1st defendant contracted with the plaintiff for the carriage by road of the goods in question “not as an agent of the 2nd defendant but as a principal contracting party in its own right” was apparently in disregard of paragraph 2 of the amended statement of claim which both defendants admitted individually. The admission is that the 1st defendant operating as clearing, forwarding and shipping agents is an agent in Nigeria of the 2nd defendant. There was no further need to prove what had thus been admitted. But even so, the appellant through its witness, Paul Okubor (p.w.2) its Group Insurance and Imports manager, testified in evidence thus:
“I know the two defendants in this case. I know the 1st defendant as clearing, forwarding and shipping agents. Also they are the agents of the 2nd defendant in Nigeria. The plaintiff contracted the clearing and forwarding of our cargo of 6,691 cartons of Nido Instant Milk powder to the 1st defendant. This was about December 1986. They were supposed to clear our goods from Apapa port of discharge to Kano.”

P.9

The witness was not cross-examined on the point of agency nor, as already said, did the defendants lead evidence at least to define or limit the agency between the two of them.
The appellant further gave oral evidence through p.w.2 that the 1st defendant delivered the consigned cartons of the Nido Instant Milk powder short of 428 cartons. It then tendered five way bills issued by the 1st defendant covering what was actually delivered. These were admitted as exhibits E, E1, E2, E3 and E4. This evidence was not challenged in cross-examination.
Going by the pleadings and the evidence, the following emerge. A total of 6,691 cartons were consigned as per the bill of lading and were shipped on board MV ‘Fiona’, a vessel chartered by the 2nd defendant. The goods were cleared by the 1st defendant and forwarded to Kano as agent of the 2nd defendant. But only 6,263 cartons were delivered to the appellant leaving a balance of 428 cartons unaccounted for by the 1st defendant. The circumstances of this case show that there was a contract of bailment in which the 1st defendant is the bailee. In bailment, the burden is upon the bailee to prove that he has discharged his duty under his undertaking to keep safely or deliver intact the goods entrusted to him. In other words, in case of loss of the goods, it is his duty as bailee to prove that the loss was not caused by his breach of duty; it is not the bailor’s duty to show that it did see Coldman v. Hill (1918-19) All ER Rep. 434 at 442; British Road Services Ltd & Arthur V. Crutchley & Co. Ltd. (1968) 1 All ER 811 at 822.
The position of the law is clear that a person may decide to act by another as his agent and get the benefit or bear the liability of that arrangement. One who authorises is the principal while the one authorised is the agent. The agent acts as if it is the principal who does the act.

P.10

In case of default, the agent normally becomes directly liable while the principal may as well be liable. It has been held that the fact that a person is an agent and is known to be so does not therefore of itself necessarily prevent his incurring personal liability. Whether he does so is to be determined by the nature and terms of the contract and the surrounding circumstances. Where he contracts on behalf of a foreign principal there is a presumption that he is incurring a personal liability, unless a contrary intention appears: see Rusholme Ltd. v. S. G. Read & Co. (London) Ltd. (1955) 1 All ER 180 at 183. InStanley Yeung Kai Yung v. Hong Kong and Shanghai Banking Corpn. (1981) A.C. 787 (P.C.), Lord Scarman, delivering the judgment of the board, observes at p. 795:
“It is not the law that, if a principal is liable, his agent cannot be. The true principle of the law is that a person is liable for his engagements (as for his torts) even though he is acting for another, unless he can show that by the law of agency he is to be held to have expressly or impliedly negatived his personal liability.”
In the present case, the 1st defendant as the agent of the 2nd defendant took the goods in question for delivery to the plaintiff. It issued its own way bills for that purpose, but have been unable to account for the loss of some of the goods. There is nothing in the circumstances to negative its personal liability.
I am satisfied that the learned trial Judge was right to have found against the defendants jointly and severally. No argument has been canvassed before us that joint liability was not appropriate in the circumstances in which the contract of bailment was made and performed. The court below was, in my view, undoubtedly wrong to have disturbed the decision of the trial court. I therefore answer issue 2 in the negative. There is no need to consider issues 3 and 4 as issue 2 is virtually inclusive of them. I allow this appeal, set aside the judgment of the court below together with the order for costs and accordingly restore the judgment of the trial court. I award N5,000.00 as costs in the court below and N10,000.00 as costs in this court.

P.11