3PLR – TRIANA LIMITED V. POLYMAKERS LIMITED
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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TRIANA LIMITED
V.
POLYMAKERS LIMITED
COURT OF APPEAL
[IBADAN DIVISION]
3PLR/2001/284 (CA)
BEFORE THEIR LORDSHIPS
SUNDAY AKINOLA AKINTAN JCA. ( Presided and delivered the leading judgment)
MORONKEJI OMOTAYO ONALAJA JCA.
OLUFUNLOLA OYELOLA ADEKEYE JCA
REPRESENTATION
Mr. A O. Jaiyeola for respondent.
Mrs. O. O. Majekodunmi who prepared and filed the appellant’s brief was absent at the hearing.
MAIN ISSUES
COMMERCIAL LAW – AGENCY – Clearing agent – failure to ensure correct number of goods as set out in the shipping documents – Whether clearing agent is liable in negligence for short delivery of goods
COMMERCIAL LAW – AGENCY – General authority of agents – Need to act in accordance with the customs and usages of their trade – Liability in negligence for failure thereto – Relevant considerations
TORT AND PERSONAL INJURY LAW – Negligence – Clearing agent failing to ensure correct number of goods as set out in the Shipping documents – Shether liable in negligence for short delivery of goods.
ADMIRALTY AND SHIPPING/MARITIME:- Clearing agent – Nature of agency created with importer of goods– Whether duty extends to ascertaining that the goods shipped according to the bill of lading were those delivered at the port, that the quantity tally with that indicated on the bill of lading and the safe delivery of the goods to the principal – Liability for shortage of consignment – How determined
TRANSPORT AND LOGISTICS:- Logistics and haulage of imported goods – Clearing agent – Liability for shortage of consignment after clearing from port – On whom lies – How determined
PRACTICE AND PROCEDURE – APPEAL – Preliminary objection – where raised in a brief of argument without arguing same at the hearing – effect of.
PRACTICE AND PROCEDURE – JUDGMENT – DAMAGES – Special damages – Need for same to be specifically pleaded and proved.
MAIN JUDGMENT
SUNDAY AKINOLA AKINTAN JCA, (Delivering the leading judgment)
This is an appeal from the judgment delivered by Ayorinde, J. sitting at Ibadan High Court in Oyo State on 22nd June 1989 in suit No.1/706/86.The present respondent was the plaintiff while the appellant was the defendant. The appellant company, Triana Limited, is a company incorporated in Nigeria with its head office in Apapa, Lagos and engaged in the business of shipping, clearing, forwarding and warehousing of goods for other companies. The respondent, Polymakers Limited, is also a company incorporated in Nigeria and based in Ibadan. It carries on the business of production of bread wrapper for which it uses low-density polythene (otherwise referred to as LDPE).
The plaintiff was expecting a consignment of LDPE in two containers due to arrive in Nigeria via Apapa port. It engaged the services of the defendant company for the purpose of clearing the consignment at Apapa port on arrival there and deliver them to the plaintiff at its Ibadan factory. The goods arrived Apapa port on schedule and the defendant company cleared the goods at the port in accordance with the agreement it had with the plaintiff company. The carriage of the two containers was done for the defendant company by a third party engaged for that purpose by the defendant. Each container contained 1280 bags of LDPE on arrival at Apapa port and up to the time they were loaded on the truck and the truck departed Apapa port for the Ibadan factory of the plaintiff company. Evidence was led at the trial to the effect that when the consignment arrived at the port, they passed through all the necessary custom clearing stages along with the officials of the defendant company. At the end of the clearing exercise the representative of the defendant company was said to have locked each of the two containers with padlocks provided by the agent of the defendant company and the vehicle then left the port premises.
The present dispute arose when the vehicle arrived at the Ibadan factory premises of the plaintiff company. There, it was discovered that the padlock on one of the containers was no longer there. It was replaced with wire used in holding the container doors together. The contents of each of the two containers were counted by the agent of the plaintiff company in the presence of the driver of the vehicle. It was discovered that the contents of one the containers, which arrived without the padlock, used in locking it, contained only 1017 bags instead of 1280 bags of LDPE. It was 263 bags short. The delivery note was so endorsed and signed by the agent of the plaintiff and driver of the vehicle as agent of the defendant. The present claim was therefore filed to recover the cost of the 263 bags of LDPE short-delivered.
The plaintiff’s claim, as set out in paragraph 18 of the statement of claim is for N100,000 being special and general damages for loss suffered sometime in February, 1986 or thereabouts for the short-delivery of 263 bags of LDPE being part of a consignment of 1280 such bags which the defendant contracted at Ibadan to deliver from Apapa port Lagos to the plaintiff’s factory at Ibadan. The plaintiff then gave a break down of its special damages.
The defendant filed its statement of defence and an amended statement of defence and counter-claim was later filed with leave of the court. The counter-claim was for refund of the defendant’s expenses incurred in clearing the goods and transporting them to the plaintiff’s premises in Ibadan which amounted to N7,958. The case thereafter went for trial before the learned Judge. The parties led evidence in support of their respective pleadings. At the conclusion of the proceedings, the learned trial Judge delivered his reserved judgment.
The learned Judge made the following findings of facts and held, inter alia, in his said judgment:
“It follows that the plaintiff has proved loss of 263bags of the material it engaged the defendant to carry and that the defendant was responsible for the loss. I do not accept the defendant’s story on the short delivery. The defendant should accordingly be responsible for the cost of 263 bags as special damages arising from a breach of contract to carry and deliver a specified goods loaded specifically and proved against them strictly as required in law…
The cost of the 263 bags has been given as N31,193.95K as at the time of the purchases of the substitute for the lost ones. The cost includes expenses of carrying the substitute to the plaintiff’s premises as stated in exhibit 11. No alternative cost has been given by the defendant … The evidence stands therefore unchallenged and therefore has to be accepted.”
The learned trial Judge refused to grant the plaintiff’s claims for loss of earning and loss of production earnings. He also granted the defendant’s counter-claim. The learned Judge said as follows in the concluding portion of his said judgment:
“On the evidence led and accepted, there will be judgment for the plaintiff on the damages that can be said to be within the contemplation of the parties in the sum of N31,193.95 No damages have been awarded for loss of earning and loss of production earnings. There will also be judgment for the defendant on it’s counterclaim in the sum of N7,958 as counter-claim alleged and supported by evidence and which I therefore hold to be proved.”
The defendant was dissatisfied with the judgment and has appealed against it to this court. Three original grounds of appeal were filed against the judgment. But with leave of this court, an amended ground of appeal containing five grounds of appeal was filed. The parties filed their respective brief of argument in this court. Although 10 issues were formulated in the appellant’s brief as arising for determination in the appeal, only 5 issues were in fact argued in the brief. The 5 issues argued in the appellant’s brief are as follows:
“1. Whether the appellant is not discharged from further obligations under the contract after having cleared the 2×20’ containers it contracted to clear on behalf of the respondent.
- Whether the appellant is in a position to know the quantity of the low-density polythene contained in the two containers cleared by it.
- Whether the learned trial Judge correctly interpreted exhibit. G.10 (bill of lading).
- Whether the learned trial Judge was right in holding the appellant responsible for the short delivery of the low density polythene by 263 bags; and
- Whether the learned trial Judge was right in awarding special damages in favour of the respondent against the appellant the former having failed to prove that it is entitled to the relief.”
The respondent also formulated five similar issues in the respondent’s brief. I therefore consider it unnecessary to reproduce the five issues formulated in the respondent’s brief.
The main complaint of the appellant as canvassed in the appellant’s brief on issues 1 & 2 is that learned trial Judge wrongly ascribed the short-fall in the LDPE bags to the respondent’s negligence. It is submitted that it was not part of the duties of the appellant under the contract it had with the respondent to count the contents of each of the two containers. All that was required of the appellant was to clear the goods from the port and deliver same to the respondent at its Ibadan factory site. That obligation is said to have been carried out and as such the learned Judge was wrong in holding the appellant liable for the cost of the 263 bags said to be missing out of the contents of one of the containers. Reference is made to the shipping documents (admitted as exhibits G,10 ,G.11, and G.12) where the goods are described as “2×20″ containers said to contain 1280 bags.” It is argued that this clearly shows that the shippers too were not sure of the number of bags contained therein but merely relied on the information given to them by the suppliers of the goods. It is therefore submitted that as it was not certain the exact number of bags in each of the containers as at the time of shipment was 1280, it has therefore not been proved that the short fall arose while the goods were in the care of the appellant.
It is further argued that although evidence was led at the trial by DW1 that immediately after the inspection by the custom officers who ascertained the quality of the goods shipped, he was asked to provide two padlocks with which the containers were firmly locked, there was no evidence that the respondent was charged with the duty of counting the number of bags in each container before it was locked.
The interpretation given to the contents of the shipping document (exhibits G.10 – G.12) by the learned trial Judge forms the subject of attack in the appellant’s issues 3 and 4. The main attack was centred at the finding of fact made by the learned trial Judge that the appellant “could not have collected 1017 bags of the goods at Apapa in view of the bill of lading the commercial invoice and the parking list they were supplied with by the plaintiff and which they were armed with at the time of the collection from the wharf as the documents referred to 1280 bags and not 1017 bags’’. It is argued that merely mentioning 1280 bags in each of the said documents is no assurance that each container actually contained 1280 bags and not 1017 bags as was eventually discovered to be in one of the containers. It is further argued that holding the appellant liable for the 263 bags was erroneous in that such a conclusion was based on mere speculation since the respondent failed to prove any shortfall.
It is contended in the appellant’s issue 5 that the learned trial Judge was wrong in holding the appellant liable for the value of the 263 bags said to be missing. It is argued that since the damages in question is special in nature, the requirement of the law is that such damages must be strictly proved before the respondent could succeed. It is argued that merely presenting the cost of replacing the missing items without calling evidence of the actual cost of the goods was insufficient proof of the cost required in discharging the onus placed on the plaintiff in the case.
As already mentioned earlier above, the respondent filed a brief. The brief was filed on its behalf by Mr. A.O. Jaiyeola, solicitor to the respondent. Notice of preliminary objection was given in the brief. But the said learned counsel was absent at the hearing in this court and as such the appeal was taking on the briefs filed by the parties. The notice of intention to raise preliminary objection is therefore regarded as having been abandoned.
The main submission of the respondent as canvassed in the respondent’s brief is that there was sufficient credible evidence before the court to support the conclusion reached by the learned trial Judge. Evidence given by DW1 as to how the goods were cleared at Apapa port, how the containers were locked up and loaded on to the truck that conveyed the goods to the respondent’s factory site in Ibadan and the discovery on arrival in Ibadan that one of the containers was no longer with its padlock. It was that very container that had its content reduced by 263 bags. All these pieces of evidence are said to be sufficient to support the plaintiff’s claim.
It is clear from the evidence led at the trial that the plaintiff engaged the defendant/appellant to clear respondent’s two containers loaded with LDPE bags on arrival at Apapa wharf. It was not disputed by the parties that the goods arrived at Apapa and the appellants cleared the two containers through custom formalities, loaded them in a lorry and delivered same at the Ibadan factory site of the respondent. It was on arrival that the respondent found that the contents of one of the containers was short by 263 bags. The short fall was discovered by the respondent’s agent who counted the contents of each of the containers. The questions to be resolved therefore are whether the appellant could be held liable for the value of the missing 263 bags of LDPE and if so whether the plaintiff strictly proved the value of the missing items as required by law.
It is clear from the shipping documents handed over to the appellant by the respondent (exhibits G.10, G.11 G.12) that the contents of each of the two containers were stated to be 1280 bags of LDPE. The question to be resolved therefore is: could it be said that the respondent was not expected to check the contents of the containers with a view to ascertain if in fact they contain the correct number of bags of the goods as stated in the shipping document given to the appellants. The learned trial Judge held that the duty was on the appellant to ensure that each of the containers contained the number of bags of the goods said to have been packed in it as stated in the shipping document in the possession of the appellant’s agents. The appellant was, in my opinion, the agent of the respondent as far as clearing of the goods and ensuring that the correct number of goods imported as set out in the shipping documents were collected from the port and delivered safely to the respondent at its Ibadan factory.
The law is settled that agents authorised to conduct particular trades or businesses normally have authority to do whatever is usually done by persons occupying such position: See Hold-Hutchinson v. Brayhead Ltd. (1968) 1 QB, 549, at 583; Re Pearson (1899) 2 Q,B, 618; and The Huntsman (1894) p. 214. Agents also have authority to act in accordance with the customs and usages of the place, or trade where the act provided that such customs and usages are reasonable. See Anglo Overseas Transport Ltd. v. Titan Industrial Corporation (1959) 2 Lloyd’s Rep. 152, at 160; and Benjamin v. Barnett (1903) 19 T.L.R. 564.
Thus applying the law as declared above to the facts of the instant case, the appellant was engaged by the respondent to clear its two containers-each containing 1280 bags of LDPE and deliver them to the respondent’s factory in Ibadan. The shipping documents were handed over to the appellant. The law requires the appellant to ensure that what it cleared from the customs at Apapa port were what the respondent was importing as described in the shipping document. Similarly the appellant was expected to check the quantities of each container and thereafter ensure their safe delivery to the respondent at its Ibadan factory. It is totally wrong of the appellant to say that its duties did not include ensuring that the contents of the containers were counted. Failure of the appellant the plaintiff to count the contents of each of the containers and ensure that the correct number of bags expected were in each of the containers and that such correct number of bags were safely delivered to the respondent at its Ibadan factory amounted to acts of negligence on the part of the appellant. The appellant was therefore liable to the respondent for the short fall.
On the question whether proved the special damages awarded, the law is well settled that claims for special damages must be specifically pleaded and strictly proved before a plaintiff could succeed: See Amos Brothers & Co. Ltd. v. BEWAC Ltd. (1952) 14 WACA 12; Jabes v. Basman (1952) 14 WACA 140; and Agunwa v. Onukwue (1962) 1 AIl NLR. 537. The position in the instant case is that the plaintiff pleaded and led evidence as to the cost of replacing the missing 263 bags of LDPE. The evidence was not controverted and as such the learned trial Judge had no cause to reject it.
In the result, there is totally no merit in the appeal and I accordingly dismiss it. The judgment of the lower court is affirmed and the respondent is awarded N10,000.00 costs.
MORONKEJI OMOTAYO ONALAJA, JCA.:
It has been gratifying reading in draft the lead judgment of my Lord Akintan, J.C.A. delivered this morning. The fact of the case was haulage contract between Lagos and Ibadan the facts are almost on all fours with Saka Owoade v. U.A.C.(1951) 13 WACA 204, leading me after consideration of the reasoning conclusion and applying Saka Owoade v. U.A.C. (supra) in the lead judgment to adopt the reasoning and conclusion in the lead judgment as my own.
Therefore, I am in complete agreement that this appeal lacks substance and rightly dismissed in the lead judgment and also makes me to abide with the consequential order of costs.
OLUFUNLOLA OYELOLA ADEKEYE, JCA.:
I had a preview of the judgment just delivered by my learned brother Dr. S.A. Akintan JCA. I agree without any reservation with his reasoning and conclusion. The overwhelming evidence before the trial court show that there was a valid contract of agency between the appellant and the respondent in this appeal. This legal relationship authorised the appellant to clear a consignment of low density polythene (1 DGE) in two containers which arrived the Nigeria via Apapa port. The appellant – Triana Limited, is engaged in the business of shipping, clearing, forwarding and warehousing of goods for other companies. Undoubtedly the respondent relied on the expertise of this appellant to engage it in the service of clearing the two containers at Apapa wharf. I agree with the learned trial Judge that as a clearing agent, acting on behalf of the respondent in clearing the two containers at the port, the duties included ascertaining that the goods shipped according to the bill of lading were those delivered at the port, and that the quantity tally with that indicated on the bill of lading. This extended to the safe delivery of the goods to the principal – the respondent. There was obviously a breach of duty by the appellant – to which it is liable in damages. The learned trial Judge had rightly made a finding which was proper to this effect. I hold also that there is no merit in this appeal – and I dismiss it. I abide the consequential orders including the order on costs.
