Agbelusi & Ogungbabi V. Chief Samuel Olabode (1993)

LawGlobal-Hub Lead Judgment Report

EMMANUEL OLAYINKA AYOOLA, J.C.A. 

This is an appeal from the decision of the High Court of Lagos state dismissing a claim by the Appellants (plaintiffs) against the respondent (defendant) for the sum of N66,030,19 being the value of goods in a container handed over to the respondent by the appellants pursuant to a contract for carriage of goods but which were not delivered and awarding interest on an admitted counter claim.

Sometime in July 1978, the respondent agreed with the appellants to carry for reward containers containing goods from Apapa Wharf to Orile-Iganmu, Lagos. The containers were duly loaded on two vehicles provided by the respondent for carriage as agreed. On arrival at the agreed destination, the vehicles were not off-loaded but were diverted to the warehouse of the owners of the goods, described as consignees, at Isolo; the appellants being only clearing agents clearing the goods on behalf of the owners. There was conflict of evidence as to the circumstances in which the vehicles were so diverted but the trial Judge found that the change of venue was not authorised by the respondent and that it was the appellants who directed that the vehicles should be driven to Isolo contrary to the agreement of the parties. One of the vehicles duly arrived at Isolo but the other did not arrive at the new destination at Isolo. The appellants immediately reported the fact to the respondent who, in turn, reported the incident to the police. Upon an ensuing search for the vehicle by the Police, it was found abandoned somewhere at Isolo with the container empty.
The driver of the lorry had since not been seen.
The Police commenced investigations which had not been completed at the time the suit was commenced and at the time of the trial.

The appellants’ case was based on the contract of carriage and the basis of their claim was that the goods, subject matter of that contract, had not been carried to the agreed destination or delivered. In their pleadings, they averred that the agreed destination was “the consignee’s Isolo Warehouse near Ikeja.” The respondent averred by his defence that the agreed destination was Awaye Store, Orile-Iganmu, Lagos. In cross-examination, the 1st appellant agreed that that was so. The respondent’s case was that the appellants unilaterally and without his consent changed the destination to Isolo and that he was by that reason not liable for the loss of the goods. He raised another defence that the contents of the container were not disclosed to him and therefore he was not liable for the loss.

The learned trial Judge treated the case as one of hire. He held that the point in issue in the case was the question whether the “defendant who hired out his lorries and the drivers to the plaintiffs is liable to the plaintiffs for the loss sustained by the plaintiffs whilst the defendant’s driver was asked to carry a set of containers of sets of television to the destination prescribed by the plaintiffs.” Having thus directed himself on what he conceived to be the main issue in the case, he considered rather in extenso the well-known case of Mersey Docks and Harbour Board v. Coggins AND Griffiths (Liverpools) Ltd. and McFarlane (1946) 2 All ER 345 which is authority on the test for the liability of a master, in a situation of contemporaneous employment, for the negligence of his servant while acting under the control and orders of another person. Upon his formulation of the issue as earlier stated, it was natural that he should place the twin questions or negligence and vicarious liability at the centre of his decision. He held that the driver of the lorry was still in employment of the respondent notwithstanding the diversion in the destination of the “lorry contrary to the agreement of the parties, but that such diversion would not exonerate the respondent from liability. What did exonerate the respondent from liability, the learned Judge held, was the absence of evidence of any negligence on the part of the driver or evidence as to how the contents of the container got missing.
The Judge concluded that:
“It was not established that it was the manner by which the driver drove the lorry … that was responsible for the loss of the contents of the container.”
It was for these reasons that he dismissed the claim. He gave judgment for the amount claimed by the respondent on his counter-claim with interest thereon at 7% per annum, liability for the principal sum of the counter-claim having been admitted by the appellants.

In this appeal from the decision dismissing the claims and awarding interest on the counter-claim several grounds have been raised by the appellants by their grounds of appeal. The grounds of appeal, set out in the notice of appeal with rather unnecessary prolixity, in respect of the dismissed claim, in summary are:-
1. “That the judgment is against the weight of evidence.”
2. “That the learned trial Judge erred in law by admitting during examination in chief evidence, which the plaintiff never pleaded.”
3. “That the learned trial Judge erred in law and in fact by ignoring the primary and effective cause of the change of the destination.”
4. “That the learned trial Judge erred in law by concluding that no negligence was proved against defendant’s driver and it was not established how the contents of the container got missing, whereas the plaintiffs’ action was based strictly on a breach of contract or failure to deliver goods.”

Briefs of argument were filed by counsel on behalf of both parties and adopted in this appeal. Issues for determination were formulated in those briefs not only with a perplexing lack of focus but without sufficient regard to the confines set by the grounds of appeal. For instance the question of vicarious liability formulated by both parties as an issue for determination as an issue of law does not arise from any of the grounds, and the respondent who has not filed a respondent’s notice formulated an issue relating to whether or not the appellants have proved the quantum of the claim. The second ground of appeal complained of wrongful admission of evidence “which the plaintiff never pleaded” when it is common-place that facts and not evidence should be pleaded. The second ground is misconceived not only in its wordings but in substance.
The appellant’s complaint is that the trial Judge admitted facts evidenced through cross-examination of the 2nd appellant when he was made to admit under cross examination that the agreed destination was Orile-Iganmu whereas the appellants had averred that it was Isolo.
Part of the object of cross-examination is to make the opponent admit the case of the party cross-examined or to establish that party’s case through the opponent’s witnesses.
An effective cross-examination weakens the opponent’s case. Where a fact has been pleaded by another party and is admitted in the course of oral evidence of the witnesses of the party who did not plead such a fact, the court is entitled and indeed obliged to admit such evidence.

It has never been the law that oral evidence of facts pleaded can only be admissible when such facts are pleaded by the side for whom such oral evidence is tendered.
The point made by Counsel for the appellants both in his second ground of appeal and in the brief in relation thereto is so palpably misconceived that it is unnecessary to dwell on it at any length.
In my opinion the questions formulated by the appellants and the respondent in their respective briefs touching on whether or not the respondent is vicariously liable and what the appellants have to prove to establish such liability can only serve to becloud the real issues.
The question which is central to this appeal and which arises from the appellants’ fourth ground of appeal is whether on the appellants’ claim as formulated, proof of negligence is essential to the respondent’s liability.
That question can hardly be satisfactorily answered without considering whether the trial Judge was right in classifying the transaction on which the action was founded as a contract of hire, it being manifest that it was upon the basis of such classification that he proceeded to consider the need for proof of negligence and vicarious liability. There is no doubt that the appellants’ case as pleaded was not founded on a contract of hire but of carriage of goods. Although there were snippets of evidence, here and there, where hire of vehicles was mentioned; on the totality of the evidence, it seems clear enough that the transaction was one of carriage of goods. A contract of carriage of goods does not become one of hire of vehicles merely because a private carrier undertook as part of the arrangement, to supply a number of vehicles daily for the purpose of carrying the other party’s goods to prescribed destination.
In the case of G.B. Ollivant Ltd. vs. S.M. Arab 15 WACA 9, there was an agreement entered into by the parties by which the respondents who were private carriers undertook to supply daily four three and a half-ton motor lorries for the purpose of carrying the appellants’ goods from the Custom Wharf, in several places. The drivers of the vehicles supplied were employed by the respondents. Describing the nature of the transaction, Foster Sutton P, delivering the lead judgment of the West African Court of Appeal, said at page 10:
“On the facts in the present case, I have no hesitation in reaching the conclusion that the position of the respondents under the agreement was not that of a person who lent vehicles and drivers for the appellants to direct, but of independent contractors who undertook by the use of their own vehicles and by the activities of their own servants to deliver the appellants goods to stipulated destinations …”
In short, the transaction was one of carriage of goods.
The agreement in the present case as regards the nature of the transaction is substantially similar to the agreement in Ollivant vs. Arab (supra). On the facts disclosed, including, the stipulation of destination and the arrangement whereby the carriers were paid by container carried, it is rather surprising that the learned Judge treated the transaction as one of hire and not surprising that on this appeal both parties have described the transaction as one of carriage of goods and argued the appeal on that basis.
The obligations of a person who gives vehicle on hire are obviously different from those of a person who undertook to carry goods. The judgment of the High Court, in my view took a fundamentally wrong turning when the learned Judge misapprehended that nature of the transaction on which the claim was founded. The obligations of the respondent should have been determined under the law relating to carriage of goods. That, in essence, is the gravamen of the fourth ground of appeal in this case.
The principles applicable in the determination of liability of a private carrier for reward for loss of goods carried under a carriage of goods are now well known. That such liability is not strict liability but is based on fault has been settled early in the eighteenth century by the case of Coggs v. Bernard (1703) 2 LD Raymond 909; in which Holt CJ classified carriage of goods for reward as one of the “six sorts of bailments” and held that the obligation of that category of bailees “is only to do the best he can.” From this emerged the principle that the private carrier is only liable for loss or damage caused by his own negligence or that of his servant, employer or agent. The notion that that principle puts on the owner of the goods (the barlor) an onus of proving, as against the carrier. (the bailee) negligence in order to succeed in a claim for loss of the goods was dispelled in the case of Hayman v. Hourt (1789) Peake Add. Cas 170 where it was established that the burden of disproving negligence is on the private carrier. That principle was followed in United Africa Company Ltd. v. Saka Owoade 13 W.A.C.A 207 where Lord Oaksey delivering the judgment of the Privy Council said at page 211:
“If he were not a common carrier, he could of course escape liability by showing that the goods were lost without any fault on his part.”

The principle that has emerged from the authorities was clearly stated in the recent’ case of Morris v. Martins & Sons Ltd. (1966) 1QB 716, 726 where Denning M.R. summed up the obligation of a bailee for reward, which a private carrier is, thus:
“Once a man has taken charge of goods as a bailee for reward, it is his duty to take reasonable care to keep them safe: and he cannot escape that duty by delagating it to his servant. If the goods are lost or damaged, whilst they are in his possession, he is liable unless he can show and the burden is on him to show – that the loss or damage occurred without any neglect or default or mis-conduct of himself or of any of the servants to whom he delegated his duty.”
Absence of negligence is thus a matter of defence. The law seems to have been well settled as early as the nineteenth century that upon a contract of bailment, a bailor who complains of a failure to re-deliver the article has a choice of remedies. In Stephens’ Commentaries, 7th ed (1874) Vol. 3, p. 432, it was said:-
“Where upon a contract of bailment, the bailor complains of a failure to re-deliver the article, the remedy is (according to the circumstances) by action of detinue, trover, on promises, or on the case for negligence.”
In the present case, the appellants have brought their action on the promise implied in the contract of carriage to deliver the goods. In Ollivant V. Arab (supra) and U.A.C. v. Owoade 13 WACA 207, the bailors chose to be sued in the tort of conversation. The principle applicable in determining the liability of the respondent must necessarily be different from that applicable if he had been used in conversion or in negligence. In this case in which the respondent has been sued in respect of his duty as a bailee the burden is on the respondent to show that the goods were lost or stolen without fault on his part. Fault in this regard means want of care, diligence or honesty.

The learned Judge clearly misdirected himself on the need to prove negligence in the case. What is material is not the absence of evidence of negligence but whether sufficient facts are pleaded by the respondent and proved to negative negligence. The misdirection by the learned judge emanated, no doubt, from his misconception of the appellants’ case which he thought, erroneously, was based on a contract of hire. The question in the case was not whether negligence has been proved on the part of the driver but whether the respondent has shown that the loss of the goods and therefore his inability to deliver, was not due to fault on his part. In my judgment the misdirection by the Judge is fundamental and has seriously distorted what should be the proper focus of the judgment. The judgment should not stand but there is the outstanding question whether judgment should now be entered for the appellants.
There are facts pleaded by the respondent which can be construed as tending to raise the issue that the loss was not due to fault on his part. It was averred in the statement of defence that “some representatives of the Universal Associate Co. Ltd.” (the owners of the goods) “came to tell the two drivers that the drivers should follow them to an alternative store at Isolo, Lagos State where the containers would be off-loaded for the consignees,” and that “the two drivers accompanied by the representatives of the Consignees, drove the two lorries from Awaye Store, Orile-Iganmu to Isolo, Lagos State on 20th July, 1978.” There is also the averment (para. 13) that the respondent organised immediate search party when a report was made by the appellants that the container was not delivered. Then in para.17 the respondent averred that he was not a party to the “contract or agreement between his two drivers and the consignees, the Universal Associate COD held that the container or Lorry No. LSC 1852 should be delivered to the consignee’s Store at Isolo, Lagos State.”
There was a finding that the destination of the lorry was diverted to Isolo contrary to the agreement of the parties. There was also evidence by the 1st appellant that “the two drivers accompanied by one man who was our representative went to the warehouse at Isolo.” These were facts fit to be submitted to a judge of facts in order to determine whether sufficient facts were established to negative fault on the part of the respondent. By the view of the matter taken by the learned Judge, no doubt unassisted by the submissions made before him, these aspects of the defence had not been considered by him.

In the circumstances of the reliefs asked for by the appellants in their notice of appeal being in the alternative namely;-
(1) judgment for the appellants on their claims or
(2) an order for a retrial of the case, I think that which accords with justice is to order a retrial of the case. Since the learned judge mis-understood the entire case, he could hardly have put the defence in proper perspective.
I must confess to some unease at having to order in 1993, a retrial of a case commenced in 1979 in which judgment had been delivered by the court below in 1981 but which did not find its way to this court until 1988. Judgment on appeal to this court is now just being given. It is undoubted that whatever has engendered such a delay in the circumstances of this case, is a serious blot on the administration of justice.
To give judgment for the appellants on the claim will however not erase such blot but may occasion yet another more serious injustice.
I would allow the appeal on the claim and presently make consequential orders.
I now turn to the appellants’ appeal on the award of interest on the counter-claim. The ground of appeal in this regard reads:-
“That the learned trial Judge erred in law and fact by awarding the rate of 7% interest per annum in the counter-claim or debt which accrued to the defendant for services rendered after the loss of the container ...”

The facts are that the respondent counter-claimed for the sum of N8,700 being the amount payable for haulage services rendered at the request of the appellants by the respondent and interest at the rate of 10% from 1st April 1979 until payment of the whole debt. The appellants filed no defence to the counter-claim and at the trial admitted the counter-claim, but urged the court to refuse the claim for interest of 10% p.a. In his judgment, the learned Judge having considered the provisions of the High Court of Lagos (Civil Procedure) Rules 1972 (or a r 3) stating the circumstances in which interest can be awarded and rate thereof; and the English Judgment Act 1838 as modified by the Judgment Debts, (Rate of Interest) Order 1971 which increased the rate of interest from 4% to 7% per annum, considered the principle for payment of interest, felt persuaded by the principles enunciated in the English authorities such as K v K (1977) 1 AU ER 576; Jefford v. Gee (1970) 1 All ER 1702 and London, Chatham and Dover Railway Co. Case (1826) 3 Bing 353 and ordered interest at 7% p.a. from 1st April 1979 until the judgment debt is fully paid.
The attack on this order as to interest in this appeal has been directed not to the validity of the principles or even the jurisdiction of the court below to apply those principles and English statutes but to the application of those principles to the circumstance of this cause. The main thrust of the argument of the appellants, rather perfunctorily put in their brief, is that the appellants have good and justifiable reason to retain N8,700 due to the respondent when the sum of N66,030.19 was earlier owed to the appellants by the respondent. The obvious fallacy of such submission is that it has not been established that any such sum was owed to the appellants.
Myself to the argument advanced in support of the ground of appeal relating to interest, I feel no hesitation in holding that there is no substance in the appeal against the order that interest be paid on the counter-claim. In the results, I would dismiss the appeal on the counter-claim.

For these reasons, I would allow the appeal from the decision dismissing the appellants’ claim; set aside the order of dismissal of the claim and order as to costs. I order that the case be heard de-novo in the court below.
I would dismiss the appeal from the order awarding interest on the counter-claim. The costs of the arbortive trial shall abide the rehearing of the case. Each party shall bear his own costs of the appeal.

Other Citations: (1993)LCN/0156(CA)