CASE SUMMARY OF:
Nigerian Ports Plc v. Beecham Pharmaceutical Pte Ltd & Anor. (2012) - SC
by NSA PaulPipAr
The appeal was dismissed. The Appellant (as defendant in the Trial Court) remains liable. The goods were kept in the custody of the bailee (the appellant) for the use of the bailor (the respondents and owner of the goods). Under a bailor and bailee relationship liability can arise in contract or tort. In this case liability arises in contract since it is for loss of property. The onus is on the bailee to show that he exercised reasonable and proper care to ensure the safety and proper custody of the goods and that the loss was not due to his negligence.
AREA OF LAW
- Commercial Law
- Statutory bailee.
- Accrual date.
Nigerian Ports Plc
1. Beecham Pharmaceutical Pte Ltd & Anor.
2. Smithkline Beecham Nig. Plc
LEAD JUDGEMENT DELIVERED BY:
Nwali Sylvester Ngwuta, J.S.C.
* FOR THE APPELLANT
- Funke Agbor.
* FOR THE RESPONDENT
- A. Adegbonmire.
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FACT (as relating to the issues)
This appeal is brought against the judgment of the Lagos Division of the Court of Appeal in which the lower Court affirmed the judgment of the Federal High Court, Lagos presided over by Jinadu, J. About November, 1993 the 1st Respondent, a Pharmaceutical Company, incorporated in Singapore with an address within jurisdiction at Km 16 Ikorodu Road, Ojota, Lagos, shipped a consignment of five containers of pharmaceutical products from Singapore to the 2nd Respondent, also a Pharmaceutical Company incorporated in Nigeria with offices also at Km 16, Ikorodu Road, Ojota, Lagos.
The appellant, a statutory body, was a bailee for reward in respect of the five containers. Four of the five containers were duly cleared and delivered to the 2nd Respondent.
However, the container with the number KNLU 318007-8 was alleged to have been broached while in the custody of the appellant in January 1994.
The respondents (as Plaintiff) sued the Appellant. The Trial Court gave Judgment in favour of the respondents. The appeal by the respondent to the Court of Appeal was dismissed. This is a further appeal to the Supreme Court.
1. Whether the Court of Appeal properly appreciated the evidence adduced at the trial Court while relying on the decision in Nigerian National Shipping Line v. Gilbert Emenike (1987) 4 NWLR (pt.63) at 77 in coming to the conclusion as to the precise date of the accrual of the respondents’ cause of action.
2. Whether the Court of Appeal properly considered the doctrine of res ipsa loquitur vis-a-vis the provisions of Section 66(2) of the Nigeria Ports Decree No.74 of 1993, thereof which clause is in respect of limitation of liability, wherein no liability in the circumstances of this Suit can be ascribed to the Appellant.
3. Was the Court of Appeal right in affirming the learned trial Court’s reliance on the Bills of Lading as “evidence against the Appellant of the quantity of goods received into Appellant’s custody.
4. Was the Court of Appeal right in affirming the refusal of the learned trial Judge to admit in evidence the clean report of findings. If yes, can the clean report of findings properly be considered in determining the quantity of goods delivered into Appellant’s custody.
RESOLUTION OF ISSUE(S)
[APPEAL: DISMISSED, WITH N100,000 COST AGAINST THE APPELLANT]
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENTS.
i. Since the matter was investigated by the appellant and the Police, the result of the investigation is one of the totality of the facts the Respondent would have to prove to be entitled to the judgment of the Court. It is my view that based on the peculiar facts and circumstances of this case, the cause of action occurred on 16/9/94, the date of the Police Report Exhibit 5 which proved the veracity of the Respondent’s complaint. On the issue of accrual of cause of action, this case cannot be distinguished from Emenike’s case (Supra) in which it was held that where the loss of goods giving rise to the cause of action is being investigated, as is the case herein, the cause of action would only accrue for the purpose of limitation statute after the conclusion of the investigation and the result is known. It does appear to me from the record that the appellant was deliberately tardy in its correspondences with the respondents in the hope that by so doing the statute of limitation (s.72(1) of the Act No. 74 of 1993 would run to the detriment of the Respondents. On the facts of this case, I hold the considered view that the last of the totality of the material facts which the Respondents need to establish to entitle them to the judgment of the trial Court occurred on 16/9/94 in the form of the Police Investigation Report, Exhibit E. Consequently, the action initiated by the Respondents on 24/3/95 was commenced within the 12 months prescribed in the limitation provision in s.72 (1) of the Nigeria Ports Decree (now Act) No.74 of 1993. I resolve issue 1 in favour of the Respondents and against the appellant.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The play on words and semantics will not avail the appellant as the two words mean the same thing – the performance of the duty for which the respondents hired the services of the appellant as a bailee for reward. There is nothing in the evidence to suggest that the respondents having hired the services of the appellant as a bailee for reward, assumed, at any time, the whole or part of the responsibility for which they hired the appellant either with or without a corresponding alteration in the terms of the bailment. There is no evidence of any variation in the terms of the contract between the parties.
ii. The Power of the appellant to act as bailee for reward under S. 3 (1) (2) (c) of the Act does not impose a duty on the appellant to engage in a contract of bailment for reward. It is a power it can exercise or refuse to exercise without liability under the law that created it. Since the contract of bailment for reward is not a duty imposed by statute on the appellant, but a power it can exercise if it so desires, it has no protection under s.72 (1) or s.66 (2) (e) of the Act if it chooses to exercise the power so donated to it by the Act.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. The bill of lading is prima facie evidence of the Respondents’ goods delivered to the appellant as the Respondents’ bailee for reward at the end of the voyage. The Court below was right to have affirmed the finding of the trial Court in that regard.
4. ISSUE 4 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENTS.
i. The concurrent findings of the two Courts below remain undisturbed in view of the fact that the appellant has not shown that the findings are either perverse, or there is substantial error either in substantive or procedural law which if not corrected, will lead to miscarriage of justice or that there is no sufficient evidence to support the findings.
Section 72(1) of Nigeria Ports Decree (now Act) No. 74 of 1993, relied on by learned Counsel for both parties provides: “When a suit is commenced against the company or an employee of the Company … the suit shall not lie or be instituted in any Court unless it is commenced within 12 months next after the act, neglect or default complained of, or, in the case of a continuance of injury or damage within twelve months next after the ceasing thereof”.
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Bank: Zenith Bank.
Name: Branham Paul Chima.
Account No.: 2178756839.
The res speaks in circumstances where the relevant facts stand unexplained and the natural and reasonable, as opposed to conjectural, inference from the facts shows that what happened is reasonably to be attributed to some act of negligence on the part of the defendant, or some want or reasonable care in the circumstances. - Ngwuta, JSC. Ports v. Beecham (2012)
A bill of lading is defined as a writing signed on behalf of the owner of the ship in which goods are embarked, acknowledging the receipt of the goods and undertaking to deliver them at the end of the voyage, subject to such conditions as may be mentioned therein. - Ngwuta, JSC. Ports v. Beecham (2012)
The bill of lading is prima facie evidence of the Respondents’ goods delivered to the appellant as the Respondents’ bailee for reward at the end of the voyage. The Court below was right to have affirmed the finding of the trial Court in that regard. - Ngwuta, JSC. Ports v. Beecham (2012)
The 2nd issue relates to the duty of care which rests on the appellant, a bailee for reward. In bailment, the duty to keep safe custody of the goods is on the bailee and not on the bailor. Such duty on the bailee is independent of any miniature arrangement by the bailor. The bailee cannot abdicate his responsibility and try to take umbrage under blame game canopy. The evidence discernible from the record points directly to the fact that the appellant neglected its duty of care and tried to shift same to the respondent. This, clearly, is evidence of negligence on the part of the appellant. - Fabiyi, JSC. Ports v. Beecham (2012)
The goods were kept in the custody of the bailee (the appellant) for the use of the bailor (the respondents and owner of the goods). Under a bailor and bailee relationship liability can arise in contract or tort. In this case liability arises in contract since it is for loss of property. The onus is on the bailee to show that he exercised reasonable and proper care to ensure the safety and proper custody of the goods and that the loss was not due to his negligence. - Rhodes-Vivour, JSC. Ports v. Beecham (2012)
The end of this brief.
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