Inland Containers (Nig.) Ltd. & Anor. V. Roger Colman Trading Company Nig. Ltd. (1997)
LawGlobal-Hub Lead Judgment Report
OGEBE, J.C.A.
The respondent company sued the appellants before the Kano High Court claiming the following reliefs in Para. 12 of the statement of claim:-
“a. The sum of $360.000 or the Naira equivalent of three thousand motorized brushes, plus interest at the prevailing bank interest rate of 21st (sic) until judgment is given in favour of the plaintiff.
b. The sum of $3,000 being cost of transportation of the said container from South-Korea to Nigeria.
c. Cost of this action,”
The appellants filed 2 separate statements of defence and the matter went into full trial. The respondent called 2 witnesses while the appellants called only one witness who gave evidence on behalf of the 1st appellant. The facts of the case are hardly disputed. The respondent imported a container to Nigeria from South Korea about January, 1993. No witness testified that he saw the contents of the container which was said to contain 3.000 motorized brushes. The invoiced cost of the imported goods was said to be $360,000 U.S. Dollars. The container was consigned to the depot of the 1st appellant in Kano. The container arrived in Lagos and was received by the 1st appellant. The 1st appellant engaged the services of the 2nd appellant to transport the container to Kano. While the container was in the custody of the 2nd appellant it was stolen. The bill of lading, Exh. 2, indicated that the gross weight of the container was 6,800 kg. The sample of the motorized brush is Exh. 9 and it weighed 5 kg.
The trial court. after taking addresses of the counsel on behalf of the parties gave judgment in favour of the respondent. Dissatisfied with that judgment the appellant filed a notice of appeal and later an amended notice of appeal containing 5 grounds of appeal. In accordance with the rules of this court, the appellants filed a brief of argument and identified 5 issues for determination as follows:-
“1. Did the plaintiff establish the contents of the container?
- Did the plaintiff establish the value of the lost goods?
- What was the effect of the indemnity (Exh. 8) on the liability of the first defendant.
- Did the plaintiff establish the purchase of the goods by the payment of U.S. $360,000?
- Did the plaintiff discharge the evidential burden placed on it by law?”
The respondent also filed a brief of argument and adopted the issues for determination formulated by the appellants.
Issues 1, 2 and 4 are virtually the same, simply put, they are asking whether or not the respondent established the contents of the container and their value in U.S. Dollars. They will therefore be taken together.
The learned counsel for the appellants submitted that the respondent failed to establish by admissible evidence the contents of the container. The documents tendered in an attempt to suggest the contents of the container, the bill of lading Exh. 2, the commercial invoice Exh. 6 and the packing list Exh. 7, do not establish the true contents of the container. Exhibits 6 and 7 were made by one Mr. D.W. Kim, President of the Hong Kim Corporation Ltd. of Seoul, South Korea, who was not called to testify and whose absence was in no way explained during the proceedings. Learned counsel submitted that those documents are not admissible under Section 91(1) of the Evidence Act. With regard to Exh. 2, the bill of lading, it was submitted that the contents were no more than hearsay evidence. It was forcefully argued that the value of the lost goods was not established. Only PW2 Alh. Surajo Ahmed gave evidence as to the value of the lost goods. His evidence according to the learned counsel for the appellant is not credible. Learned counsel pointed out that one sample of the motorized brush weighed 5 kg, therefore the 3,000 brushes said to be contained in the container would weigh 15,000kg as opposed to the weight of the container put at 6,800kg. This shows clearly that the container could not have carried 3,000 motorized brushes. From its weight it could have carried, if at all, 1,240 pieces which would cost 148,800 U.S. Dollars and not 360,000 U.S. Dollars.
In reply to these issues the learned counsel for the respondent submitted that the contents of the missing container were clearly established in Exhibits 2, 6 and 7 which were properly admitted under Section 91(1) of the Evidence Act. Learned counsel argued that the maker of Exhibits 6 and 7 D.W. Kim is resident in South Korea and this made it reasonably impracticable to secure his attendance as a witness. It was submitted further that the value of the goods in U.S. Dollars was established by Exh. 6 and the evidence of PW 2 which was not controverted.
It is not disputed that the respondent’s claim from the appellants was a claim for special damages for loss of its goods contracted to the appellants. It is trite law that special damages must be strictly proved and that burden is on the claimant to discharge. See the following cases:-Ijebu-Ode L.G. v. Adedeji Balogun & Co. Ltd. (1991) 1 NWLR (Pt.166) 136; Odiba v. Azege (1991) 7 NWLR (Pt.206) 724; Strabag Construction (Nig.) Ltd. v. Ogarekpe (1991) 1 NWLR (Pt.170) 733 and Sommer v. F.H.A. (1992) 1 NWLR (Pt.219) 548.
In this particular case, all that the respondent relied upon to prove the contents and the value of the goods lost are Exhibits 2, 6 and 7. The makers of these exhibits were not called to testify and no foundation whatsoever was laid as to why they were not called to testify.
Section 91(1) of the Evidence Act reads:-
“In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied:-
(a) if the maker of the statement either:-
(i) had personal knowledge of the matters dealt with by the statement, or
(ii) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and
(b) if the maker of the statement is called as witness in the proceedings; provided that the condition that the maker of the statement shall be called as a witness need not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is beyond the seas and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.”
None of the conditions of admissibility of these documents was fulfilled. The makers were not called to testify. One D.W. Kim was said to be the maker of Exhibits 6 and 7. There is nothing to show that he had personal knowledge of the contents of the container and there is no explanation as to why he was not called as a witness. If it is true that he lived in South Korea and PW2 could visit him in the course of his business, then it was not impracticable for him to come to Nigeria to testify in a serious claim such as this. In my respectful view therefore, Exhibits 2, 6 and 7 were wrongly admitted and even if they were properly admitted, are worthless. They did not establish the true contents of the container nor their actual value.
To compound the matter is the fact that it was amply demonstrated before the trial court that the container could not possibly hold 3,000 pieces of mororized brushes in view of the fact that one brush weighed 5 kg and 3,000 would weigh 15,000 kg and not the declared weight of 6,800 kg. The most devastating aspect of the respondent’s case in the court below is the fact that it did not produce any receipt for the payment of the goods in U.S. Dollars. At page 18 of the printed record the trial court itself asked PW 2 the chairman of the respondent company whether he had the receipt for the 380,000 Dollars charged, and he replied that he had but he did not bring it to court. PW1 also testified that the goods contained in the container were never inspected. That was why he could not supply the appellants with I.D.R. (import duty report). It is clear then that neither at the South Korean and nor at the Nigerian end was there definite evidence as to the true contents of the missing container and their value. Consequently, it could not be said that the value of the missing goods was strictly proved before the lower court. There was therefore no basis for the trial court to have awarded the sum of 360.000 U.S. Dollars in favour of the respondent.
It should be noted, however, that the freight charge of 3.000 Dollars for the container being the cost of transportation from South Korea to Nigeria was never disputed by the appellants in their pleadings and in this appeal.
On the 3rd issue which is the effect of the indemnity in Exh. 8 on the liability of the 1st appellant the learned counsel for the appellants conceded that it is intended to protect the 1st appellant against third party claims, but it was submitted that it also protects the 1st appellant against the claims of the respondent.
I consider this issue to be purely academic in view of the decision I have reached in respect of Issues 1, 2 and 4. In case I am wrong, I would uphold the submission of the learned counsel for the respondent that the indemnity covered by Exh. 8 is only applicable to third party claims and not a claim by the respondent against the 1st appellant.
The 5th Issue relates to the burden of proof and as I have held earlier in this judgment, the respondent failed to prove strictly the contents and value of the lost goods. The burden of proof was not on the balance of probabilities as wrongly held by the trial court. It was a claim for special damages which required strict proof.
In the result this appeal is allowed in part. The judgment of the lower court awarding the sum of 360,000 U.S. Dollars or the Naira equivalent to the respondent is set aside and the respondent’s claim in that regard before the lower court is hereby dismissed. The award of the sum of 3.000 Dollars or its Naira equivalent for the transportation cost for the lost container from South Korea to Nigeria has not been disputed or appealed against. That award by the lower court in favour of the respondent against the appellant is hereby affirmed. The appellants are entitled to costs of N1,500.
Other Citations: (1997)LCN/0351(CA)
