⦿ CASE SUMMARY OF:
Comet Shipping Agencies Nigeria Limited v. Babbit (Nigeria) Limited (2001) – CA
by NSA PaulPipAr
⦿ LITE HOLDING
The Court of Appeal held that the statement in a bill of lading binds only the Ship owner and the Cargo owner, hence, the Trial Court verdict was overturned.
⦿AREA OF LAW
– Law of Torts
Comet Shipping Agencies Nigeria Limited
Babbit (Nigeria) Limited
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Suleiman Galadima, J.C.A.
* FOR THE APPELLANT
– Ademola Akinrele, S.A.N.
* FOR THE RESPONDENT
– A. Wilson Esq.
⦿ FACT (as relating to the issues)
The respondent’s (as Plaintiff at Trial Court) case at the trial court was that the appellant was contractually obligated to it as bailee for reward to redeliver a consignment of 327 cartons of container No. IEAU 28 2803/0 and kept in the appellant’s custody.
Further that beyond the contractual obligation, the appellant was under a duty of care to see that it was not negligent, in keeping the said goods. The respondent had contended that the appellant failed to meet its obligations under the contract. As a result of the appellant’s negligence in keeping the goods, 17 of the 327 cartons were lost.
Defence put up by the appellant to the above claim, was that it was entrusted with a container for safe keeping by the respondent, the contents of which it had no knowledge of nor examined prior to taking delivery of same. The appellant contended that it redelivered the said container in the condition in which it was received. That the missing cartons, were never in the container at the time the contract of storage was concluded.
Furthermore, the appellant in its defence states that it exercised all reasonable skill and care that an ordinary warehouseman would exercise whilst the goods were in its custody and thus, did discharge its duty of care towards the respondent.
At the trial, a total of eight documents were tendered as exhibits from the bar by consent of the parties whilst the respondent and appellant called one witness each in proof of their case.
At the close of the trial the learned trial Judge found in favour of the respondent and held that the container delivered to the appellant contained 327 cartons as evidenced by the bill of lading and found the appellant liable for the loss of 17 cartons. She therefore awarded US $5,000.00 as special damages, and N50,000.00 as general damages for the loss.
The defendant being aggrieved have appealed before the Court of Appeal.
1. Whether a Contract of Affreightment (Bill of Lading) binds a bailee as in this case who is not a party to the said contract?
2. Whether the learned trial Judge was right in holding that the evidence given by the defendant witness (DW1) was hearsay evidence?
3. Whether in the circumstances of this case the appellant was negligent in respect of the bailment entrusted into his care by the respondent?
4. Whether the learned trial Judge could legitimately award general damages for the respondent in the sum of N50,000 for loss suffuered by the respondent on account of the appellant’s negligence, when she had earlier awarded the sum of $5,000.00 special damages for the same loss?
1. Whether there was sufficient evidence before the learned trial Judge to justify the award of US $5,000 as special damages?
⦿ RESOLUTION OF ISSUE(S)
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. It would appear to me that section 154 of the Evidence Act applies only to a shipper, carrier, consignee or endorsee. In the instant case, the appellant is neither shown to be any of the above. With due respect to the learned trial Judges, he misapplied section 154 of the Evidence Act when she held the appellant accountable on the grounds that it failed to provide any evidence oral or documentary to prove that there is an error in the bill of lading.
ii. I agree with the submission of the learned Counsel for the appellant in the brief that the statement about the goods appearing in the Bill of Lading becomes important only when there is a dispute between the Ship owner and the Cargo owner.
2. ISSUE 2 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.
i. In the instant case DW1 was the Claims Manager of the appellant Company. Apart from being conversant with the facts of this case, he is quite a competent witness to testify about the affairs of the company. The learned trial Judge should have considered the evidence of DW1, as to the appellant’s defence of reasonable case.
3 & 4. ISSUES 3 & 4 WERE RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST OF RESPONDENT.
i. Broadline case is distinguishable from this instant case because the defendants in that case failed to lead evidence, to establish that they exercised reasonable care in respect of the bailment of consignment of goods entrusted in their care. They failed to challenge or controvert the evidence of negligence established against them at the trial.
ii. For these reasons I am inclined to hold that the appellant was not in anyway negligent in respect of his bailment. It has discharged its duty of reasonable care. Consequently, the awards of $5,000 “as total recompense” for the loss of 17 cartons of assorted spare parts and N50,000 as general damages by the lower court were unjustified, and done in utter disregard of the general principles guiding such award.
iii. The award of N50,000 as general damages. This is wrong as it is contrary to the principle stated by Wali JSC in the Supreme case of Union Bank of Nigeria Ltd. v. Odusote Bookstores Ltd. (1995) 9 NWLR (pt.421) at 586, thus: “The award of general damages is improper where the quantum of loss is ascertainable. See Kerewi v. Odegbesan (1967) 1 NMLR 89”.
**CROSS APPEAL DISMISSED
1. THE CROSS APPEAL ISSUE WAS RESOLVED AGAINST THE CROSS-APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. It is fairly settled law that special damages must be particularised and proved strictly. Plaintiff must prove special damages he claims unless admitted by the defendant. In the instant case the respondent did not give particulars of special damages claimed in the pleadings. Unlike general damages, special damages cannot be inferred from the nature of the act complained of. The specifc value of each particular lost item must be pleaded and proved. In cases where the loss is part of a whole, the particular value of that part must be ascertained and proved to the reasonable satisfaction of the court.
ii. At the trial the respondent did not show how 17 missing cartons amounted to $41,605.56. Exhibits “A” and “B” tendered at the trial are the packaging list and the invoice order identifying the weight of what was purportedly shipped and their total value at US$90,726. There is no indication whatsoever in these two exhibits as to the value of 17 cartons said to have been missing out of the total package. Besides these exhibits are part of the shipping documents the content of which will not bind the appellant for the obvious reasons I have exhaustively dealt with in the first issue in the appellant’s brief.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
⦿ NOTABLE DICTA
It would appear to me that the principle behind this decision is simply that a contract of bailment is a separate issue from a contract of affireightment in proving the contract of bailment, the contract of affireightment cannot be relied upon. – Galadima, J.C.A. Comet v. Babbit (2001)
I am of the affirm view that the learned trial Judge erroneously reached this conclusion. At common law evidence acquired by the witness in the course of his employment is not only relevant but admissible. This proposition is supported by the Supreme Court decision in Kate Enterprises Ltd. v. Daewoo Nigeria Limited (1985) 2 NWLR (Pt.5) 116. – Galadima, J.C.A. Comet v. Babbit (2001)