Leventis Technical Limited V. Petrojessica Enterprises Limited (1999)
LAWGLOBAL HUB Lead Judgment Report
E. OGUNDARE, J.S.C.
The plaintiff, a dealer in technical goods, sometime in 1977 placed order through its London office, for some consignments of electric and gas cookers. The goods were shipped through the Facship Lines in Spain and for delivery at the Lagos Port. For some unexplained reasons however the goods which came through vessels of the Facship Lines (that is. Cabe. Farruch and Viclan Nimbus) arrived at the Burutu Port and were cleared by the defendant who acted throughout as the agent of Facship Lines. The plaintiff was unaware of the arrival of the goods at the Burutu Port until sometime in 1978. Efforts were made by its officials to take delivery of the goads. After payment to the defendant of all sums of money demanded by the latter for demurrage, etc, the plaintiff took delivery of the cookers in March. 1978. There was, according to the plaintiff, a short-delivery of 138 crates of gas cookers valued at N92,745.39.
Following protracted but unsuccessful negotiations between the plaintiff and the defendant, the former sued the latter on 9th August 1984 at the Federal High Court, Benin-City, claiming:
“(a) The delivery of the 138 crates of gas cookers short delivered at Burutu Port as at March, 1978 as shipping agent of Facship Lines Limited per Cabe Farruch, Viclan/Nimbus and Chambbey Era Vessels out of the total 202 crates of gas cookers, electric cookers and hot plates or
(h) The sum of N92, 745.39 (Ninety-two thousand, seven hundred and forty-five naira, thirty-nine kobo) being the value of the said 138 crates of gas cookers delivered by the defendant from the ships but undelivered to the plaintiff as at March, 1978 as particularised both in the writ of summons and the statement of claim filed in this action.”
Pleadings having been filed and exchanged, the action proceeded to trial before Ojutalayo. J. The plaintiff had pleaded in paragraphs 3 and 12 of its statement of claim thus:
“3. The defendant is a limited liability company and at all material times to this action held itself out to the plaintiff as the Ships Agent at Burutu Port, on voyages made under the auspices of Messrs Facship Lines of Vaduz. Liechtenstein and the said defendant supervised the Stewdorcil of vessels, management of port facilities and sheds allocated by Nigerian Ports Authority to the defendant”
- The plaintiff avers and will maintain at trial that neither the ships nor Facship Lines Limited informed the plaintiff of the appointment of the defendant as their agent at any time.”
The defendant, in its statement of defence, replied:-
“4. Regarding paragraph 3 of the statement of claim, defendant admits that it (defendant) is a company registered in Nigeria with liability limited by shares.
- Further to paragraph 3 of plaintiff’s statement of claim, defendant firmly denies ever having, now or at any time in the past anything whatsoever to do with the Stewdorcil of vessels.
- Defendant admits, regarding paragraph 3 of plaintiff’s statement of claim, that it managed port facilities and sheds allocated by the Nigerian Ports Authority and that defendant held itself forward as so managing.
and went on to plead thus:
“26. This action was not brought within 1 year from March, 1978, which was the date the consignment was delivered to the plaintiff, and accordingly the action is barred by virtue of Carriage of Goods by Sea Ordinance Cap. 29 Laws of the Federation of Nigeria and Lagos 1958.
- In any case defendant pleads that the cause of action referred to in the writ of summons and paragraph 37 of plaintiff’s statement of claim accrued to the plaintiff more than 6 years before the date of the commencement of this action. In the premises, action against the defendant was and is barred by virtue of the Limitation Act 1966.
- Further, by reason of the matters aforesaid the title of the plaintiff to the said goods has been extinguished by virtue of the Limitation Act 1966.
29, Wherefor the defendant avers that the plaintiff is not entitled to claim against it as stated in paragraph 37 of his statement of claim and that the claim is misconceived, frivolous, speculative and ought to be dismissed with substantial costs.”
Evidence was led on both sides at the conclusion of which, and after addresses by learned counsel for the parties, the learned trial Judge. in his judgment, found:
- That the defendant was at the material lime the agent of the ship owners, Facship Lines Ltd. in Nigeria.
- That the defendant as agent of a known and disclosed principal, the Facship Lines Ltd., could not be held liable to the plaintiff for short delivery or non-delivery of the 138 crates of gas cookers in issue in this case.
- That the 138 crates of gas cookers should have been delivered on or before 31st March 1978 when the cause of action arose.
- That as the writ of summons was taken out on 9th August 1984, a period of over 6 years after the cause of action arose, the action was statute barred by virtue of the Carriage of Goods by Sea Act. Article 3 rule 6 of the Schedule thereto.
Concluding his judgment, the learned Judge said:
’91E2’9180’9cThe net result of all I have been saying therefore, is that this action fails, one because the defendants are not the proper party to be sued being agents of a disclosed principal and two, because the action was instituted out of time: it is statute barred. The action should therefore be dismissed and it is hereby dismissed:’91
Being dissatisfied with this judgment, the plaintiff appealed unsuccessfully to the Court of Appeal. The plaintiff has now further appealed to this court upon two grounds of appeal which read:
’91E2’9180’9c1. That the learned Justices of the Court of Appeal erred in law in confirming the judgment of the learned trial Judge in the issue of disclosed principal which was not established.
PARTICULAR OF ERRORS
a. When the defendant did not adduce positive evidence oral or written establishing this assertion.
b. When the learned Justices of the Court of Appeal assumed the establishment or proof of disclosed principal by a purported arrangement by defendant with Nigerian Ports Authority in providing port facilities for ships carrying goods to Burutu Port.
c. When there was no positive evidence of the defendant/respondent to substantiate the agency of Facships ships as to port facilities, warehousing and other facilities averred.
d. That there existed presumed agency by the Court of Appeal in the defendant/respondent as to what to do with the custody of the goods delivered at Burutu.
e. That there existed presumed intention or inferred intention in the respondent to receive the said goods and to deliver same on their behalf, that is, the vessels or ships.
f. That the respondent who took it upon herself to release the goods on payment of fees did so as agent of the carrier i.e. the vessels.
g. That the learned Justices of the Court of Appeal erroneously confirmed the judgment of the trial Judge by equating pleading as evidence or proof of same i.e. agency of a disclosed principal.
h. The trial Judge and the Justices of the Court of Appeal relied on presumed agency based on speculation and/or possibility.
- That the learned Justices of the Court of Appeal erred in law holding the provisions as to Carriage of Goods by Sea Act applicable was not section 2 of the Act but paramount clause (clause 2) of the relevant bills of ladings Exhibits ‘A’, ‘K’ and ‘K1′.
PARTICULARS OF ERRORS
(a) When section 2 of the Act i.e. Carriage of Goods by Sea Act Cap 29, 1958 Laws of the Federation predicated the definition of carrier in Article 1 Schedule.
(b) When there was no evidence pleaded or adduced embracing the defendant/respondent within Article I and Article II Schedule 1(a), (e) (1), 2, 3, of Cap. 29 of the Law.
(c) There was no evidence of contract of agreement of carriage oral or written tendered at trial envisaged by the said law.”
The parties filed and exchanged their respective briefs of arguments. Upon a preliminary objection taken at the oral hearing of the appeal to the effect that the appeal was incompetent in that no leave of court to appeal was sought and obtained, and after hearing counsel on this objection, we held that ground (1) was a ground of mixed law and fact and leave to appeal not having been sought nor obtained thereto, the ground was struck out as being incompetent. We, however, upheld the competence of the appeal on ground (2).
The question for determination as framed in the brief of the plaintiff and adopted by the defendant reads:
“2. Whether the learned Justices of the Court of Appeal were justified in holding that the plaintiff’s action was statute barred, thus misinterpreting the legal effect of Article 3 rule 6 of Carriage of Goods by Sea Act. Cap. 29 and section 2 Laws of the Federation of Nigeria 1958.”
The main thrust of the argument of learned leading counsel for the plaintiff is that Article 3 rule 6 of the Hague Rules incorporated into the Carriage of Goods by Sea Act. Cap. 44 Laws of the Federation of Nigeria, 1990 only protects the carrier and the ship and not the agent of the ship owners. It is conceded that carrier includes the ship owner. It is however submitted that as the defendant is not a ship owner it is not covered by the Act.
I find no substance in this appeal. There is a specific finding of the court of trial, and affirmed by the court below, that the defendant was, in respect of the delivery of goods to the plaintiff in March 1978 at the Burutu Port, agent of the carrier of the goods, that is Facship Lines Ltd. This finding, not open to be set aside by this court in this appeal – there is no appeal against it – remains binding on the plaintiff. The learned trial Judge held that the Hague Rules applied by virtue of section 2 of the Carriage of Goods by Sea Act, Cap. 44 Laws of the Federation of Nigeria 1990. I think the learned Judge was in slight error here. Section 2 which provides:
“2. Subject to the provisions of this Act, the Rules shall have effect in relation to and in connection with the carriage of goods by sea in ships carrying goods from any port in Nigeria to any other port whether in or outside Nigeria.” (Italics is mine)
applies only where a ship carries goods from a port in Nigeria to any other port whether in or outside Nigeria. In the present case the goods were carried from a port outside Nigeria to a port in Nigeria. The court below is, however, right to hold that what applied, the Hague Rules, in the present action is clause 2 of the bill of lading (Exhibit A) titled “Paramount Clause”. The clause provides:
“Paramount Clause.
The Hague Rules contained in the International Convention for the Unification of Certain Rules relating to Bills of Lading, dated Brussel the 25th August 1924 as enacted in the country of shipment shall apply to this contract. When no such enactment is in force in the country of shipment, the corresponding legislation of the country of destination shall apply, but in respect of shipment to which no such enactments are compulsorily applicable, the terms of the said Convention shall apply:’
That error of the learned trial Judge does not. however, vitiate the correctness of his decision that the Hague Rules apply in this case.
Now Article 3 rule 6 of the Hague Rules reads:
“Unless notice of loss of damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody or the person entitled to delivery thereof under the contract of carriage, or, if the loss or damage be not apparent, within three days, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading.
The notice in writing needs not be given if the state of the goods has at the time of their receipt been the subject of joint survey or inspection.
In any event the carrier and the ship shall be discharged from all liability in respect of loss of damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered.
In the case of any actual or apprehended loss or damage the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods,”
The provisions of this rule are clear and unambiguous and present no difficulty in interpretation. Applying it to the facts of this case, the plaintiff, as receiver of goods, lost any claim for short-delivery on the carrier or ship one year after delivery to him, that is, 31st March 1979 at the latest. He brought his action in August 1984, well outside the period laid down in the rule. Had this action been against the carrier, that is Facship Lines Ltd. or the ship, it is admitted for the plaintiff that the defence of limitation would be unassailable. The contention here is that as the defendant was not the carrier it could not take advantage of the rule.
I think this contention is misconceived; It is settled law that the act of an agent in the course of his employment, is the act of his principal. It follows, therefore, that where the principal can take advantage of a statutory provision when sued, his agent, where sued, can also take advantage of that provision. I think the two courts below are clearly right in their decisions that the defendant was entitled to take advantage of Article 3 rule 6 of the Hague Rules and that the present action against it was statute-barred and to dismiss same. I agree entirely with the court below when, per Adio J.C.A, as he then was, said:
“On the question whether, as the Rules protect a carrier, the respondent could not take advantage of protection given in Article III of rule 6 of the Rules, the position is that the respondent, being an agent of the carrier (Facship Lines Ltd.) for the purpose of delivering the goods to the appellant could take advantage of the protection given in Article III rule 6 of the Rules. The act of an agent, for a particular purpose, is the act of the principal. The situation is, in law, as if it was the principal that did what the agent did or omitted to do. The common law rule is expressed in the maxim; qui per seipsam facere videtur which means: He who does an act through another is deemed in law to do it himself. That is why a person cannot escape legal liability merely because he has done what he did through an agent. The act of the respondent in releasing or delivering the goods to the appellants is regarded as the act of the principal. Facship Lines Ltd., that was the carrier and was, therefore, protected by Article III rule 6 of the Hague Rules setout in the Schedule to the Carriage of Goods by Sea Act. Cap. 29 of the Laws of the Federation of Nigeria, 1958. The Paramount Clause in each of the bills of lading in this case (Exhibits ‘A’, ‘K’ and ‘K1′) incorporated the terms and limitation contained in the Hague Rules and as the appellant’s action was not brought within one year after the delivery or the goods or of the dale when the goods should have been delivered it is statute barred. See Kaycee (Nigeria) Ltd. v. Prompt Shipping Corporation & Anor. (1986) 1 NWLR (Pt. 15) 180 at pp. 192 and 193:’
This action in any event would have stood dismissed having regard to the first ground on which it was originally dismissed, that is, that the defendant as agent of a disclosed principal, the action was wrongly instituted against it. That conclusion has not been challenged in this appeal.
I dismiss this appeal and affirm the judgment of the court below. I award NI0,000.00 costs to the defendants.
S. M. A. BELGORE, J.S.C.: The provisions of the Hague Rules, Article 3 rule 6 leave no ground for ambiguity as to limitations of action. The carrier and the ship shall be discharged from all liability in respect of loss or damage to the cargo unless the suit in respect of such loss or damage is brought within one year after delivery of the goods or date when the goods should have been delivered. Where the principal can take advantage of a statutory relief, the agent can avail himself of that advantage. The concurrent findings of the two courts below are clearly in accord with law and cannot be assailed. I, therefore, find no merit in this appeal and for the fuller reasons in the lead judgment of my learned brother. Ogundare, J.S.C ,. I also dismiss it with N10,000.00 costs to the respondent.
SC.178/1992
