Asiatic Shipping Services Inc & Anor V. Frigoglass Industries (Nig) Ltd & Anor (2016) LLJR-CA
LawGlobal-Hub Lead Judgment Report
CHINWE EUGENIA IYIZOBA, J.C.A.
The Respondents herein as Claimants instituted this suit at the lower Court by a Writ of Summons and Statement of Claim dated 10/8/07: wherein they claimed from eight Defendants among who were the Appellants herein as follows:
[a] The sum of N39,502,871.70 being damages arising from loss of and/or damage to the Respondents? cargo, which was sustained by reason of the Appellants breach of contract and/or duty and/or negligence during the carriage of the Respondents? cargo on board the ships – MV KEDUNG MAS, MV KANAL MASS and MV GREAT BLOSSOM, during voyage from Jakarta Indonesia to Lagos Nigeria.
[b] 10% interest on the sum of 39,502,871.70
[c] Costs.
The Respondents later discontinued the suit against six of the defendants leaving the 7th and 8th defendants, (Appellants herein) who as defendants filed their Statement of Defence dated 12/12/07 praying that the suit be dismissed against them on the ground that the Respondents? Statement of Claim disclosed no cause of action against them; further that they are not necessary parties to the suit because the 1st
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Appellant was neither the Carrier nor the Owner of the vessel in which the Respondents? goods were carried and that the alleged act, neglect, omission and/or commission the Respondents complained of took place outside Nigeria and that the 2nd Appellant was only an Agent of a disclosed Principal and never entered into any contract of carriage or bailment with the Respondents.
In proof of their claims the Respondents called two witnesses and tendered Exhibits ” A-E” while the Appellants on their part called one witness and tendered Exhibits “DF”, “DF 1” and ?G?
At the conclusion of trial, the lower Court on 6/10/09 entered judgment for the Respondents against the Appellants in terms of all the reliefs claimed. The Appellants being dissatisfied with the judgment appealed by Notice of Appeal dated 27/10/09 at pages 149-152 of the Record of Appeal containing three grounds of appeal .
?The parties filed and exchanged briefs of argument. The Appellant?s brief was settled by Emmanuel Achukwu Esq. Therein; out of the three grounds of appeal he formulated a sole issue for determination as follows:
“Whether upon a Proper
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consideration of the facts and evidence adduced before it, and the law applicable, the trial Court was right in holding the 2nd Appellant liable for the alleged damage to the Respondents, goods.?
The Respondents? brief was settled by C. A. Candide-Johnson SAN. In his brief , he adopted the sole issue formulated by the Appellant.
ARGUMENTS ON THE SOLE ISSUE
“whether upon a proper consideration of the facts and evidence adduced before it, and the law applicable, the trial Court was right in holding the 2nd Appellant liable for the alleged damage to the Respondents’ goods.?
Appellants? arguments:
Learned counsel for the Appellant in his brief submitted that the learned trial judge erred in holding the 2nd Appellant liable for the damage to the Respondent?s containers because the damage occurred outside Nigeria. Counsel submitted that the 2nd Appellant (8th defendant) who was based in Nigeria was the local agent of the owners of the vessel and cannot be held liable for damage that occurred in the High Seas, outside the shores of Nigeria. Counsel argued that as an agent of a disclosed principal , that it is
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wrong for the learned trial judge to hold the 2nd Appellant liable for the damage to the Respondents’ goods relying on Section 16(3) of the Admiralty Jurisdiction Act 1991 which has created an exception to the general principle of law that an agent is not vicariously liable for the default of his principal. counsel submitted that it is not in dispute from the pleadings and evidence led that the five containers Nos. CAXU988791-8, CAXU498348-3, TEXU521036-0, GESU411207-1 and TEXU512272-0 arrived Nigeria damaged. The evidence was that they were scattered all over like an explosion in the high sea. (See evidence of PW1 and Exhibit C9 at page 75 of the Record of Appeal). Counsel submitted that a report of the joint inspection of the damaged containers on arrival in Nigeria was submitted to the 2nd Appellant’s principal in Malaysia confirming that the damage occurred during trans-shipment from the original vessels, NV “Keclung Mas,, and MV “Kanal Mas” to the second vessel MV “Great Blossom,, of port Klang which finally discharged the entire consignment of Apapa port in the damaged condition. Counsel submitted that PW1 and DW1 testified that the 2nd Appellant was
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merely an Agent in Nigeria in the course of the carriage of the Respondents’ goods. He submitted that before the provisions of Section 16(3) of the Admiralty Jurisdiction Act 1991 can be applicable to an agent it must be shown or proved that the act, default, omissions or commissions were in respect of anything done in Nigeria. He argued that in the instant case, the combined reading of the averments in Paragraphs 4, 5 and 9 of the Respondents’ Statement of Claim and the evidence led by both PW1 and DW1 establish the fact that the damage to the Respondents’ containers occurred during voyage in the high seas outside Nigeria; the 2nd Appellant could not therefore be held liable for the damages. Counsel relied on MV “CAROLINE MAERSK? v. NOKOY INVESTMENT LTD (2002) 12 NWLR (PART 782) PAGE 472 AT PAGE 484 RATIO 9.
Learned Counsel further submitted that even assuming without conceding that the damage had occurred in Nigeria the law requires the Respondents to prove the culpability of the 2nd Appellant. Counsel cited the case of HILLARY FARMS LTD V. MV ?MAHTRA? (SISTER VESSEL TO M/V ?KADRINA?) 1& 2 ORS (2007) 14 NWLR (PART
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1054) 210 AT 215 RATIO 4; 332 A-C) where the Supreme Court held that the use of the word ?may? in Section 16[3] of the Admiralty Jurisdiction Act , 1991 suggests that a principal?s liability does not automatically attach to an agent. Thus, a party must lead evidence to show reason why the agent should be held liable in respect of the liability of its principal . Learned counsel submitted that the Respondents did not lead any evidence to show that the 2nd Appellant was culpable in the circumstances of this case. He opined that they could not have, as there was no way the 2nd Appellant who was in Nigeria at all times material to the case, would be held liable for an explosion that was said to have occurred “in the high seas” and which led to the goods arriving Nigeria damaged.
?Learned Counsel submitted that there was no basis for the learned trial Judge’s finding at page 146 of the Record that the Defendant did not call any witness to testify as to where the damage occurred or what actually happened to the goods. Counsel submitted that this is a contradiction to the findings of the learned trial Judge elsewhere in the judgment. He further
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submitted that the averments in Paragraphs 4,5 and 9 of the Statement of Claim, and the clear admission of the PW1 at page 109 of the Record of Appeal that “the explosion happened during the voyage and that the damage did not occur in Lagos, Nigeria”, are sufficient proof that the damage did not take place in Nigeria. Counsel submitted that though it is not in doubt that the Respondents’ goods were damaged; since the 2nd Appellant was neither the carrier nor owner of the vessel, and the fact that the alleged damage did not happen in Nigeria, the 2nd Appellant, a Nigerian Agent of a disclosed principal should not be held liable for the damage.
Learned Counsel urged us to allow the appeal and to set aside the Judgment of the Federal High Court Lagos delivered on the 6th day of October 2009 against the 2nd Appellant.
RESPONDENT’S ARGUMENTS :
Learned senior Counsel for the Respondent in his brief of argument submitted that the Respondents had in their statement of claim averred that the damage to its consignment on board the Appellants vessel was caused by the negligence of the Appellants and by their failure to make the ship seaworthy at the
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commencement of the voyage and/or to properly man, equip and supply the ship. Learned senior Counsel contended that the evidence presented by the Respondents at the trial showed that the damaged units of refrigerating sets were contained in five containers which containers had been deconsolidated at or before trans-shipment in that none carried the correct seal numbers which were indicated on the bills of lading. Learned silk submitted that pictures of the damaged units were provided by PW1 who also testified that the cause of the damage was due to an explosion of the ship during voyage from the port of loading to the port of discharge in Nigeria. He submitted that the Superintending/Survey Report Exhibit C9 tendered at the trial by the Respondents as to the state of the goods and alteration of container numbers upon arrival of the vessel in Lagos was unchallenged by the Appellants during trial and that it is trite law that uncontroverted evidence is deemed admitted. He relied on Okpaleke v. NEPA (2003) 14 NWLR (pt. 840) 383.
?Learned senior Counsel submitted that the evidence of PW1 and Exhibit C9 which the 2nd Appellant claimed constituted an
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admission that the damage to the Respondents goods took place outside Nigeria, in order to render the 2nd Appellant not liable for the act of its principal, is a misconception of the evidence contained therein. He argued that the 2nd Appellant knowing that PW1 is not an expert of locating where on the high seas the damage to Respondents goods on board Appellants vessel could have occurred and in which specific geographical location it did occur, did not question him any further as to the reason for his opinion. He further submitted that the documentation manager was not on board the vessel from the Port of voyage to the Port of discharge and that statements made by him and relied upon by the Appellants amount to hearsay evidence. ?Learned silk posited that the fact that the 2nd Appellant sought to rely on excerpts of statements made by the documentation manager in PW1?s survey report shows that they have no credible evidence of their own as to where the damage to the Respondents goods occurred. He submitted that PW1?s job description is that of a surveyor/loss adjuster and not that of the master of the vessel. He argued that he is consequently not
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an expert in the field of calculating or estimating where damage could have occurred. Learned senior Counsel submitted that the two reports indicate that the act could have been due to an explosion on the high seas and that the high seas also include Nigeria?s territorial waters. He opined that no weight can be placed on the evidence purporting to locate where the damage to the Respondents goods in the Appellants vessel occurred.
Learned silk submitted that the case of the Respondents is that the damage occurred in Nigeria and that it was consequently for the Appellant to prove that the act that caused the damage did not occur in Nigeria in order to bring themselves within the exception provided by Section 16(3) Admiralty Jurisdiction Act Laws of the Federation of Nigeria 2004.
?He further submitted that DW1 testifying for the appellants in attempting to controvert the evidence of the Respondents as to where the damage occurred said: “some of the goods arrived Nigeria damaged, because during voyage from Port Iceland to Durban, there was heavy bad weather that caused it to tilt and hit the goods. The vessel was docked at Durban and obtained a
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protest notice notarized over there in South Africa.? Learned senior Counsel submitted that the master of the ship was not called as a witness in the course of trial and that there was no opportunity to cross-examine him, being the one who allegedly saw the damaged goods and that he also did not have an opportunity to inform the Court which cargo he was referring to with regard to the protest notice.’ Learned silk argued that no reason was given by the Appellants for the unavailability of the master of the ship. He submitted that the trial judge in evaluating the evidence rightly did not attach any weight to the document as recommended in the cases of AG Oyo State v. Fairlakes Hotels Ltd 1989 5 NWLR (pt. 121) 255 and Union Bank of Nigeria Plc (UBN) v. Sparkling Breweries Ltd 1997 5 NWLR (pt. 505) 344.
Learned senior counsel further submitted that there was no pleading in the appellant’s statement of defence to support the evidence of DW1 that
“Some of the goods arrived Nigeria damaged, because during voyage from Port Iceland to Durban, there was heavy bad weather that caused it to tilt and hit the goods.” Learned senior Counsel submitted
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relying on the case of Uzochukwu v. Eri (1997) 7 NWLR (Pt. 514) 535 that parties are bound by their pleadings and that evidence which is at variance with averments in the pleadings go to no issue and should be disregarded by the Court.
?Learned silk urged us to dismiss the appeal and uphold the trial Court?s decision in entering judgment in favour of the Respondents in the sum of NGN39,502,871.70 plus interest of the rate of 10% for the reasons firstly that the 2nd Appellant being the local agent of the 1st Appellant is liable for the damage which occurred to the Respondents goods in the Appellants vessel by virtue of Section 16(3) of the Admiralty Jurisdiction Act, as the damage to the respondent?s goods occurred in Nigeria and secondly that the 2nd Appellant being the local agent of the 1st Appellant is liable for the damage which occurred to the Respondents goods in the Appellant’s vessel as no credible evidence was fed to controvert that of the Respondents as to where the damage occurred or what actually happened to the goods.
RESOLUTION:
From the writ of summons and statement of claim in the Record of appeal, the original defendants in this suit were 8 viz:
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(1) owners/charterers of M.V. Kanal Mas; (2) MV Kanal Mas; (3) Owners/Charterers of M.V. Kedung Mas; (4) MV Kedung Mas; (5) owners/charterers of MV Great Blossom; (6) MV Great Blossom; (7) Asiatic Shipping services Inc; (g) Elder Dempster Nigeria Limited. Paragraph 3 of the Statement of claim at page 3 of the Record states:
“The 8th Defendant is a Nigerian company doing business of ship agency inter alia within this jurisdiction and is or was at the material time the agent of the 1st to 7th Defendants and the vehicle by which they carry on business within Nigeria.?
Paragraph 4 of the 7th and 8th Defendants? Statement of Defence at page 132 of the Records reads:
“Save to admit that the 8th Defendant is engaged in the business of ship agency and at all times material to this suit was the agent to the MV “Great Blossom” during her call to Nigeria, Paragraph 3 of the Statement of Claim is denied.?
It is therefore common ground that the 8th defendant now the sole appellant in this appeal was merely an agent in the suit. From the judgment of the lower Court of Page 131 of the Record, I note that after many adjournments and motions,
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the Plaintiffs/Respondents filed a notice of discontinuance against the 1st ? 6th Defendants, leaving the 7th and 8th Defendants as the only defendants against whom judgment was given by the lower Court. The Notice of appeal was filed on behalf of the 7th and 8th defendants. They were consequently initially the Appellants in the appeal and all processes were filed on their behalf. On the 18th of April 2011, the 1st Appellant Asiatic Shipping Services Inc filed a Notice of Withdrawal of its appeal against the Respondents leaving the 2nd Appellant Elder Dempster Nigeria Ltd as the sole Appellant. No amendment was made to reflect the fact that the 2nd Appellant now remained the sole appellant so the processes filed continued to refer to the sole appellant as the 2nd appellant.
The only issue for determination in this appeal is whether the lower Court was right in holding the 2nd Appellant liable for the alleged damage to the Respondents’ goods. The question therefore is under what circumstance can an agent of a carrier be held liable for damage to goods in the vessel? The case of MV Caroline Maersk v. Nokoy Invest. Ltd. (2002) 12 NWLR (pt. 782) 472
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cited by both counsel provides the answer to the question. Ayoola JSC delivering the lead judgment of the Supreme Court at pages 506 ? 507 F – C observed:
“one final point taken on the question of liability is as regards the liability of the 3rd defendant which was, admittedly, an agent of the ship. Normally, an agent is not vicariously liable for the default of his principal. However, Section 16(3) of Admiralty Jurisdiction Act creates special liability of the agent in the following terms:
‘A person who acts as an agent of the owner, charterer, manager or operator of a ship may be personally liable irrespective of the liability of his principal for the act, default, omissions or commission of the ship in respect of anything done in Nigeria.”
The liability of the agent in terms of Section 16(3) is dependent on whether the acts, default, omissions or commission was (or were) in respect of anything done or to be done in Nigeria. That the act, default etc was in respect of anything done or to be done in Nigeria by the ship is an essential Part of the cause of action and is a material fact that ought to be alleged and proved. speculation as to
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where such event happened will not do. It is clear that in this case the 3rd defendant had been sued as an agent and that as such he could only be liable pursuant to Section 16(3) of the Admiralty Jurisdiction Act. The act, default, omissions or commission of the ship for which the ship was sued could have been in or outside Nigeria. There is no allegation that any such event happened in Nigeria. In these circumstances there was really no basis for making the 3rd defendant liable. In my judgment, the appeal of the 3rd defendant must be allowed.?
From the above judgment of the Supreme Court, the final Court of the land, for an agent to be held liable under Section 16(3), the following conditions must be met:
1. The act or omission complained about must have taken place in Nigeria
2. The fact that the act or omission occurred in Nigeria is an essential part of the cause of action. It is therefore a material fact which the plaintiff must allege and prove. In other words the burden of alleging and proving that the act or omission occurred in Nigeria rests squarely on the plaintiff. speculation as to whether or not the act occurred in Nigeria
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is insufficient.
3. The burden does not rest on the defendant to prove that the act or omission did not occur in Nigeria.
Looking at the pleadings of the Respondent, the evidence led and the submissions of learned Counsel for the Respondents, it is abundantly clear that the act or omission complained about did not occur in Nigeria. Let me start with the pleadings. The statement of claim is at page 3 of the Record.
The relevant paragraphs aver:
4. By two “freight pre paid” bills of lading no’s BRG 000374 and BRG 0000387 dated in Jakarta, Indonesia on 16th June 2006 and 19th June 2006 respectively, the Defendants acknowledged shipment on board their vessels MV Kedung Mas and MV Kanal Mas of several containers containing 1500 units of refrigerating sets completely knocked down in apparent good order and condition for carriage from Priok, Jakarta, Indonesia and delivery at Lagos, Nigeria to the order of the Plaintiffs.
5. The cargo was to be and was in fact transshipped at Port Klang onto MV Great Blossom.
8. In breach of duty and/contract the Defendants delivered 510 units of refrigerating units in severely damaged and completely
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unmarketable condition.
9. The said damaged units were contained in 5 containers with identification numbers as follows: (1) CAXU988791-B (ii) CAXU49834B-3; (iii) TEXU52103-0; (iv) GESU411207-1; (v) TEXU512272-0 which containers had been deconsolidated at or before transshipment in that none carried the correct seal numbers which are indicated on the bills of lading.
12. In breach of the contract and/or duty the Defendants failed to make the ships or any of them sea worthy at the commencement of the said voyage and/or to properly man, equip and supply the ships.
13. In breach of contract and/or duty the Defendants failed to make the ship seaworthy of the commencement of the said voyage and/ or to make the holds fit for the reception, carriage and/or preservation of the said goods.
15. In breach of contract and/or duty the Defendants, their servants or agents failed to take reasonable care in and about stowage and carriage of the said goods.
17. In breach of contract and/or duty the Defendants failed to take all measures that could reasonably be taken to avoid the explosion or other undisclosed and unexplained accident on board MV Great
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Blossom, MV Kedung Mas or MV Kanal Mas and the loss sustained did not result from reasonable measures to save property of sea.
?From the above averments, the complaints of the Respondents were that the vessels in which the goods were shipped were not sea worthy at the commencement of the voyage. The vessels were not properly manned or equipped. The holds of the vessels were not fit for the reception, carriage and/or preservation of the said goods. The Defendants failed to take reasonable care in and about storage and carriage of the said goods. The containers had been deconsolidated at or before transshipment into MV Great Blossom from MV Kedung Mas or MV Kanal Mas in that none carried the correct seal numbers which are indicated on the bills of lading. The transshipment took place in Port Klong, Durhom. None of these complaints as averred in the statement of claim occurred in Nigeria. I turn now to the evidence adduced by the Respondents. Their primary witness was PW1. He testified on page 107 of the Record that the cause of the damage is due to explosion of the ship during voyage from the port of loading to the port of discharge in Nigeria. Under
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cross-examination, he testified:
“The explosion happened during the voyage. The damage did not occur in Lagos, Nigeria. I know the 8th defendant; they are the local agent of the owners of the vessel.”
This is the very important evidence given under cross-examination during the trial by the main witness called by the Respondents and there was no reexamination in respect of this very vital piece of evidence. The Respondents cannot convert their submissions in their brief of argument to evidence the Court can act on. Without leading the required evidence and indeed contrary the evidence they actually led, the Respondents made the following submission in their brief:
The Respondents also state that the effect of PW1?s testimony (examination in chief and cross examination) (see pages 107 and 109 of the record) regarding where the damage to the Respondents goods occurred, in addition to the Superintending/survey Report (see pages 74-76: and Exhibit C9 of the record) which have both been relied upon by the 2nd appellant as constituting on admission that the damage to the Respondents goods took place outside Nigeria, in order to divest tie 2nd
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Appellant of liability for the act of its principal, is a clear misconception of the evidence contained therein.
The 2nd Appellant knowing that PW1 is not an expert at locating where on the high seas the damage to Respondents goods on board Appellants vessel could have occurred and in which specific geographical location it did occur, did not question him any further as to the reason for his opinion.
The Respondents submit that both PW1?s oral testimony and the contents of the Superintending/Survey Report constitute testimony relating to the results of investigations conducted upon arrival of the goods in Nigeria. Nowhere in PW1’s report (see pages 10-26 of the record) and the Superintending/Survey Report (Pages 74-76: Exhibit C9) is it stated that both authors of the reports were on board the vessel when the ?explosion? occurred though admittedly they are both not explosives experts. Neither did the reports refer to either of them having spoken to the master of the ship or stevedores who were on board the ship of the time of voyage, in order to generate report and ascertain the location of the damage. Reference is only made to the
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documentation manager Mr. Tony Essien in this regard; hereunder reproduced (Page 14; Exhibit A of the Record)
“Asked what actually caused the damage, he confirmed that the damage might have occurred during transshipment from the original vessel to the second vessel that finally discharged the entire consignment at Apapa port…However, he confirmed that the endorsement on the bill of lading No JT/06/122 was as a result of reloading the consignment into containers at the Port of transshipment.?
The Respondents submit that the documentation manager was also not on board the vessel from the Port of Voyage to the Port of discharge and statements made by him and relied upon by the Appellants amount to hearsay evidence. The fact that the 2nd Appellant seeks to rely on excerpts of statements made by the documentation manager in PW1?s survey report shows that they have no credible evidence of their own as to where the damage to the Respondents goods occurred.
With due respect, learned senior counsel for the Respondents is clearly under a misconception as to the burden of proof. It certainly is not for the Appellant to prove that the damage
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did not occur in Nigeria but for the Respondent to allege and prove as an essential part of the cause of action that the damage occurred in Nigeria. Not only that the Respondent failed to do this; on the contrary their pleading and evidence led in Court showed that the damage occurred outside Nigeria. There is absolutely no misconception in the evidence of PW1. He was called by the Respondent to give evidence of the Report he prepared arising from his examination of the damaged goods and the entire transaction. He did so without any contradiction from the Respondents by way of re-examination. It is too late in the day to claim that his evidence was hearsay. The Respondents cannot now change the facts pleaded and evidence led through written submissions in their brief of argument. It is trite that argument of counsel cannot substitute evidence presented before the Court. Oduwole v. David West (2010) ALL FWLR (pt. 532) SC1643.
Learned senior Counsel in his brief admitted that the damage occurred outside Nigeria. As summarized above:
Learned senior counsel for the Respondent in his brief of argument submitted that the respondents had in their Statement
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of claim averred that the damage to its consignment on board the Appellants vessel was caused by the negligence of the Appellants and by their failure to make the ship seaworthy at the commencement of the voyage and/or to properly man, equip and supply the ship. Learned senior counsel contended that the evidence presented by the Respondents at the trial showed that the damaged units of refrigerating sets were contained in five containers which containers had been deconsolidated at or before trans-shipment in that none carried the correct seal numbers which were indicated on the bills of lading. Learned silk submitted that pictures of the damaged units were provided by PW1 who also testified that the cause of the damage was due to an explosion of the ship during voyage from the port of loading to the port of discharge in Nigeria.
?The contention was that the ship was not seaworthy at the commencement of the voyage. The ship was also not properly manned or equipped. The containers were deconsolidated at or before transshipment of Durham. The deconsolidation may have given rise to wrong packing which contributed in causing the damages during voyage when the
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explosion occurred. None of these incidents took place in Nigeria. The Respondents cannot blow hot and cold. The point however is that the burden to allege and prove that the damage occurred in Nigeria rests squarely on the Respondents. As stated by Ayoola JSC in MV Caroline Maersk v. Nokoy Invest. Ltd (supra) speculation as to whether the damage occurred in Nigeria or not will not suffice. There must be concrete evidence that the damage did occur in Nigeria. The Respondents failed woefully to discharge the burden. In fact they were under the misconception that the burden was on the Appellant. So also was the learned trial Judge. Hear him:
“it is not in doubt that the Plaintiff, imported several containers containing 1500 refrigerating units?……………..
The Provisions of Section 16(3) of the Admiralty Jurisdiction Act is hereunder reproduced.
‘A person who acts as an agent of the owner, charterer, manager or operator of a ship may be personally liable, irrespective of the liability of his principal for the act, default, omission or commission of the ship in respect of anything done or failed to be done in Nigeria.’
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The Act clearly makes the agent liable in such a situation. That is the essence of Section 16(3). The Defendant did not bring any witness who testified to where the damage occurred or what actually happened to the goods. But what has been established is that the five containers were damaged and bore different numbers. This is evidence of negligence on the part of the Defendants. This Court believes that the 7th and 8th Defendants are caught within the provisions of Section 16 of the Act. To hold they are not liable will cause great injustice to the Plaintiff. The 8th Defendant never denied the fact that they are agents to the carriers of, the goods. Somebody has to be liable for the serious damage done to the Plaintiff?s consignment of goods and that somebody is the 7th and 8th Defendants”. (See Pages I45- 147 of the Records)
The underlined portion is evidence that the learned trial judge also labored under the misconception that the burden was on the Appellant. Learned trial judge may be right that somebody had to be liable for the serious damage done to the Respondents’ goods for after all the general rule is that where there is a wrong, there should be a
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remedy but that somebody can only be liable under the law, not outside the law. The 2nd Appellant is an agent of a disclosed principal. In such circumstances the agent is not held personally liable as his actions are deemed that of his disclosed principal. There are however exceptions. For example, a Nigerian agent of the owner of the vessel can be held personally liable under Section 16(3) the Admiralty Jurisdiction Act if the damage occurred as a result of anything done or not done in Nigeria. This surely makes sense. Why would an agent resident in Nigeria be held personally liable for damages to goods which occurred outside Nigeria under circumstances in which he played no role whatever?
The purpose of Section 16(3) is to hold agents responsible for any act done within Nigeria which leads to damage of the goods of the owner. This appeal surely has merit. It is hereby allowed. The judgment of the learned trial judge is Suit No. FHC/L/CS/742/2007 delivered on 6/10/09 is set aside. The claims against the 2nd Appellant are hereby dismissed with N50,000.00 costs in favor of the 2nd Appellant.
Other Citations: (2016)LCN/8805(CA)
