Alhaji Salisu Barau ( Trading Under The Name And Style Of Alhaji Salisu Barau & Sons) V Messrs Caleb Brett And Sons (Nigeria) Ltd (1968)
LEWIS,J.S.C.
This is an appeal by the plaintiff from the decision of Williams J. in the Kano High Court in suit K/11/1966 in which on the 17th March, 1967, he dismissed the plaintiff’s claim with costs of £350.
The plaintiff sued in detinue and his writ, as amended late in the hearing, read:-
“The plaintiff’s claim against the defendant is for the return of certain cattle by-products or for the sum of £2,860.4.0d., their value, and damages for the detention of goods which the defendant at Kano, accepted from the plaintiff in 1965 and undertook for a monetary consideration to ship to plaintiff’s customers in England, United States of America, Germany etc. but which goods the defendant failed to ship.
The said goods which consisted of cow bones, horns, bags etc. have not been returned to plaintiff and their value has not been paid to the plaintiff despite repeate demand,” though it appears from an earlier application to amend during the hearing that he was in fact, claiming not £2,860.4.0 but the sum of £2,725.17.6. The facts put shortly were that the plaintiff was a trader in Kano, trading under the firm’s name, in various cattle by-products which he exported from Nigeria. The defendant is, inter alia, a clearing and forwarding agent with its headquarters at Apapa and a branch office in Kano. The plaintiff used to rail goods to Apapa Docks under waybills made out to the defendant. The goods, in fact, on arrival at Apapa, were transferred from the Railway to the Nigeria Ports Authority and held by them.
On receipt of copies of the waybills from the plaintiff, the defendant would present them to the Nigerian Ports Authority who had possession and control and stored the goods concerned, and then would make arrangements for their shipment to their various overseas destinations as soon as possible. These cattle by-products were goods which, by their very nature, were difficult to ship as they were looked on as being objectionable cargo. It was not disputed that the goods when held at Apapa were inadequately looked after by the Nigerian Ports Authority despite protests from the defendant and in consequence thereof deteriorated greatly in the rain with the result that the defendant could not find shipping space for these deteriorated goods.
On the 23rd September, 1965, the plaintiff requested, in a letter, the defendant to hand over any of his goods invoiced on the waybills which had not already been shipped, to Messrs. Palm Lines Agencies of Nigeria Limited at Apapa and according to the evidence of the defendant, which was accepted by the learned trial judge, it did this by taking the representative of Palm Lines to the Apapa Wharf and showing him the goods. Palm Lines found that the goods were in a bad state and needed rebagging did, in fact, thereafter rebag and ship some 22.85 tons, but a quantity of the plaintiff;s goods which had deteriorated too badly to ship remained on the wharf. On these facts the plaintiff has chosen to sue the defendant not in contract, in tort for negligence, but solely in detinue. Mr. Atilade, for the appellant, has argued a large number of grounds of appeal but they all turned upon one point, namely that, in his submission, the defendant was negligent in his conduct as belles and failed to take reasonable steps to guard the goods against damage and failed to ship the invoiced goods overseas with the speed that it should have done as a result of which the goods deteriorated in value.
It is Mr. Atilade’s submission that in detinue it is possible to claim not only for the loss of goods by the bailee, but also for their loss of value whilst in the hands of the bailee and If he be right in this we shall need to examine his grounds of appeal seriatim. For this submission he relies on the statement in Clerk & Lindsel on Torts, 12th edition, paragraph 934, where it states:-
“it is the duty of the bailee for reward to take all reasonable precautions for the safety of the goods bailed to him.”
He has, in support of this quotation, cited to us Bullen v. The Swan Electric En-graving Company (1907) 23 T.L.R. 258, but that case turned upon the loss by the bailee of goods in their care and it was found that the bailees had used such care as a reasonable person would use in the case of his own property and were therefore not liable. He cited to us further Phipps v. The New Claridge’s Hotel (Limited) (1905) 22 T.L.R. 49, but that was a case which determined that the onus of showing that loss was not due to the negligence of the bailee lay with him; Ran-son v. Platt (1911) 2 K.B. 291, which turned on whether the bailee was negligent in parting with the goods on the order of a magistrate which he allowed to be made by his own negligence and where, incidentally, the action brought against him was in the alternative for damages for wrongful conversion; Coldman v. Hill (1919) 1 K.B. 443 which turned on the necessity for a belles to use reasonable diligence to recover goods which were lost when in the custody and where, incidentally in the action the plaintiff sued in negligence as well as in detinue; and Scottish Dyers & Cleaners (London) Limited v. Manheimer (1942) 166 L.T. 358, which turned upon the meaning of “detained” in section 40 of the Metropolitan Police Courts Act 1839 which specifically permitted the owner to complain to a Metropolitan Police magistrate about his goods if not of value of more than £15, being detained without just cause, or to obtain the value if the person detaining them refused to surrender them.
In all of these cases therefore, it in fact appears that the possession of the goods in issue was lost, not that the goods had remained in the hands of the bailee and that he was liable in detinue for their loss in value. No authority was cited to us to show, as Mr. Atilade contended, that in detinue loss is to be equated to loss of value and we do not consider that the statement in Clerk and Lindsell on Torts, which we have quoted, and on which he relies, supports his contention as it is dealing with the duty of a bailee to safeguard goods in bailment from being taken from his possession as, for instance, by loss or theft, or with any duty of a bailee to be liable for deterioration In value of goods in his possession because of his negligence. In other words, the loss for which the belles’s liability is discussed in the passage cited from Clerk and Lindsell on Torts, is a loss of pos-session and not a loss in the value of goods in his possession. A bailee must not be negligent in guarding the goods in bailment but if the sole claim against him is that he was negligent in looking after the goods in his possession and that because of that it is established not that the goods were lost from his possession but that they have deteriorated in value, then the claim cannot, in our judgment, be brought in detinue. When an action is brought in detinue it is brought for the specific recovery of personal chattels wrongfully detained from the person entitled to the pos-session of them and for damages occasioned by the wrongful detainer, and examples of how the claim should be brought can be seen in Bullen and Leake’s Precedents of Pleadings, 11th edition, P. 427.
The plaintiff, in the present circumstances, ought to have considered whether it was possible to sue in contract or in tort for negligence itself. The plaintiff here did not establish that the defendant had lost the goods whilst in its possession and by the time the action was commenced the learned trial judge accepted that none of the goods remained in the possession of the defendant as they had been handed over the Palm Lines at the request of the plaintiff and we do no see that the learned trial judge was wrong in making this finding. Having regard to this, Mr. Atilade’s submission on the law fails and it is not, therefore, necessary to consider the various grounds of appeal which, on the facts, he contended supported his submission as to the law.
Finally, we must add that it was not disputed by Mr. Atilade that, after the goods were handed over to Palm Lines by the defendant, Palm Lines shipped some 22.85 tons for the plaintiff but no credit seems to have been given to the defendant for this in the plaintiff’s claim for £2,725. 16.6d and no evidence of the value of the goods so shipped was given so it would, in any case, have been impossible for us to have given judgment for the plaintiff for the sum claimed If he had otherwise established his claim which we have already indicated in our view he has not.
The appeal is accordingly dismissed with costs which we will assess on hearing counsel as to the amount that the defendant had to pay for the record of appeal, as this does not appear, as it always should, in the record of appeal.
Other Citation: (1968) LCN/1597(SC)
