Broadline Enterprises Ltd. V. Monterey Maritime Corporation & Anor (1995)

LAWGLOBAL HUB Lead Judgment Report

IGUH, J.S.C.

By a writ of summons filed on the 31st March, 1987 in the Federal High Court of Nigeria, Lagos, the plaintiff, who is now appellant instituted an action against the defendants, now respondents, claiming as subsequently amended as follows:-

“(i) The price (C & F) of 3,434 bags of sugar at U.S. $55.5 per bag…………$190.587 .00

(ii) General Damages……..N25,000.00

(iii) Interest at 10% per annum from the date of Writ until judgment and thereafter at 5% per annum until judgment debt is finally liquidated.”

Pleadings were ordered in the suit and were duly settled, filed and exchanged.

The plaintiff’s case, put shortly, is that on or about the 29th July, 1981, 100,000 bags of white crystal sugar were entrusted to the defendants for shipment from Rotterdam to Apapa, Lagos and for delivery at Apapa to the plaintiff for valuable consideration. The plaintiff company which claimed to be the importer of the goods stated that the defendants, in breach of their duty of care as common carriers and bailees, failed to deliver a total of 3,434 bags out of the said consignment of 100,000 bags of sugar to the plaintiff. Inspite of repeated demands, the defendants had failed and/or refused to deliver the said 3,434 bags of sugar to the plaintiff hence this action. The plaintiff thus claimed against the defendants jointly and severally for breach of contract and in negligence as common carriers and bailees for reward for the non-delivery and/or loss of the said 3,434 bags of sugar. Testifying for the plaintiff company, P.W.1 and P. W.2 gave ample evidence in line with the averments in the plaintiff’s Statement of Claim. They tendered various documents in support of the plaintiff’s case, inclusive of ten invoices in respect of the goods, Exhibits A1-A 10 and the relevant Bills of Lading, Exhibits B1 – B10. They claimed that the 100,000 bags of sugar belonged to the plaintiff but that they were short-delivered to the plaintiff by 3,434 bags by the defendants who were bailees of the entire consignment. The alleged short delivery of the said 3,434 bags was further confirmed by the Nigerian Ports Authority report, Exhibit C. The price (C & F) of each bag of the said sugar was stated to be U.S. $55.5 and the consignment was carried by the defendants for reward. They had, despite repeated demands, failed to deliver the missing bags of sugar to the plaintiff company or pay their value.

It must be specially noted that none of the above only two witnesses who testified on behalf of the plaintiff before the trial court was cross-examined by the defendants.

At the close of the case for the plaintiff, learned counsel for the defendants indicated that he did not intend to call any evidence. Accordingly, he rested his defence with the evidence led on behalf of the plaintiff.

Learned plaintiff’s counsel at this stage indicated to the trial court as “We are abandoning claim on bills of lading, that is, for breach of contract. We only claim on negligence. Thus paragraph 14 of our Statement of Claim”

(Italics supplied for emphasis)

Both counsel thereupon addressed the court.

The learned trial Chief Judge. Belgore. C.J. at the conclusion of trial on the 20th February, 1987 found for the defendants and dismissed the plaintiff’s claims. Said the learned Chief Judge –

“The effect of the plaintiff abandonment of the issue of Bills of Lading is that he has abandoned his case. The evidence of the two witnesses he called relate to Bills of Lading or effect or result of them. If Bills of Lading are to be discountenanced, ipso facto the evidence relating to them cannot be considered because they cease to exist.

Granting that an issue of tort of bailee and common carrier can be made out, it was not pleaded. In the face of abundant line authorities once it was not pleaded it cannot be considered.”

A little later in his judgment, the learned trial Chief Judge concluded as follows:-

“Having accepted on the foregoing authorities that parties and court arc bound by pleadings and the plaintiff having voluntarily abandoned their case on Bills of Lading. I hold that all evidence of the Bill of Lading are to no issue, and are rejected. I do not found any issue left once the issue of the Bills of Lading is withdrawn. The issue of Bailee and Common Carrier are interwoven and inseparable from the issue of the Bills of Lading.

But even if it can be held that the issues of Bailee and Common Carrier are separable from that of the issues of Bills of Lading then there is no evidence that the defendants owed any duty of care to the plaintiff. There is no evidence of any reward paid to the defendant for carrying the goods once evidence of the Bills of Lading is disregarded.

………………………….

On the whole I found no case established against the defendant. The case on Bills of Lading was withdrawn by the plaintiff. The issue of Bailee and Common Carrier was not pleaded independently of the issue of Bills of Lading and if however it was pleaded, and can be said to amount to independent pleading, then there is no evidence of any duty of care owed by the defendant to the plaintiff. In the circumstances enumerated, the plaintiff’s case must be dismissed and it is thereby dismissed with costs.”

Dissatisfied with this decision of the trial court, the plaintiff lodged an appeal against the same to the Court of Appeal, Lagos Division which in a unanimous judgment dismissed the appeal on the 23rd January, 1989 and affirmed the decision of the trial court.

Aggrieved by the said judgment of the Court of Appeal, the plaintiff has further appealed to this Court. I shall hereinafter refer to the plaintiff and the defendants in this judgment as the appellant and the respondents respectively.

Six grounds of appeal were tiled by the appellant. These grounds of appeal, without their particulars, are as follows:-

“1. The Court of Appeal erred in law when it held that even if there was any pleading left about negligence there was no credible evidence led in support of such negligence when the respondents admitted “consequentially” carriage of appellants cargo of 100,000 bags of sugar and their short-delivery therefore (paras 35,9 8,10 Further Amended Statement of Defence).

2. The Court of Appeal erred in law by affirming the dismissal of the appellant’s claim despite respondent’ s admission of short-delivery of the said 100,000 bags of sugar to the appellants (paras 9 & 10 Further Amended Statement of Defence).
3. The Court of Appeal erred in law when it held as follows:-

It must be understood that is not the bailment of the goods that gave rise tot his action but the alleged short-delivery of same and no evidence of such short-delivery is now available by the withdrawal of the claim based on the bills of lading which would have shown whether the goods were short delivered or not”

4. The Court of Appeal misdirected itself on the facts when it held as follows:-

“A close examination of the issues involved shows that it was the bills of lading that would show the nexus between the sender and the receiver of the goods and the value of goods transported. The bills of lading would also have shown that in fact the goods were correctly or short delivered.

5. The Court of Appeal erred in law when it held; ‘When therefore the counsel for the plaintiff at the lower court stated that:-

“We are abandoning claim on bills of lading that is for breach of contract. We only claim on negligence at the close of case, the main stay of the case pleaded and presented would appear destroyed and thus came to a wrong decision.”

6. The Court of Appeal erred in law by failing to apply the following decisions which are relevant and were cited in appellants written and oral submissions to the Court:

(a) Jackson v. Mayfair (1952) 1 All ER 25

(b) Holt Transport v. Chellarams (1973) 3 SC 59 (1973): 1 All NLR (Pt.1) 202

(c) CSA v. Intercotra (1969) 1 All N.L.R. 112

(d) Pallalpina v. Wariboko (1975) 1 All N.L.R. 24

(e) Turner v. Stallibrass (1898) Q.B. 56.”

The parties, pursuant to the rules of this court, filed and exchanged their written briefs of argument.

The five issues identified on behalf of the appellant which this court is called upon to determine are as follows:-

“(i) Whether having regard to the pleadings and the evidence led in support on the record, the Court of Appeal was justified in dismissing the appellant’s appeal.

(ii) Whether the Court of Appeal properly evaluated and appraised the pleadings and evidence led in support of the appellant’s claim.

(iii) Whether the Court of Appeal was right in saying that there was no evidence to support the plaintiff’s claim for negligence.

(iv) Whether an abandonment of a head of claim by counsel is tantamount to an abandonment of the evidence led in the case.

(v) Whether the learned trial justices of the Court of Appeal were right in disregarding Exhibits B1-B10, that is, the Bill of Lading and other pieces of evidence led in this case as they did.”

The respondents, on the other hand, identified three issues in their written brief of argument for the determination of this court. These are as follows:-

“1. What issues were joined on the pleadings

2. After the giving of evidence but before the address of counsel, what issues if any remained joined after plaintiffs declaration of abandonment of claims of bills of lading, that is, for breach of contract’
3. Of the issues, joined, what was proved by evidence”

A close study of the three issues raised in the respondents’ brief of argument discloses that they are sufficiently encompassed by those identified by the appellant in its brief of argument. Accordingly, I shall in this judgment confine myself to the issues as formulated by the appellant.

At the hearing of the appeal, both learned counsel for the parties proferred additional arguments in amplification of the submissions contained in their respective written briefs of argument.

It is plain to me that the main question upon which both the trial court and the court below rested their decisions is whether the appellant having regard to the pleadings filed in the suit and the evidence led before the trial court, is entitled to judgment as claimed or at all. This question is covered by issues four and five as formulated by the appellant in its brief. The contention of the appellant is that notwithstanding the withdrawal of the arm of its claim on breach of contract based on the bills of lading, Exhibits B1-B10, there remained the claim in respect of bailment grounded on the negligence of the respondents in respect of which the appellant is entitled to judgment. The submission of the appellant’s learned counsel is that the onus is on the respondents, as bailees for reward to establish that there was no negligence on their part in the loss of the 3,434 bags of sugar short delivered to the appellant. This onus he argued, was not discharged by the respondent. He stressed that the appellant established ownership of the 100,000 bags of sugar, that the same were entrusted to the respondents as bailees for reward for delivered intact to the appellant at Apapa and that the consignment was short delivered by the respondents by 3,434 bags. He therefore submitted that both courts below erred in law by failing to find that the appellant’s claim on bailment was satisfactorily established in the face of failure by the respondents to show that the loss occurred without negligence or default on their part.

The respondents, for their part, argued that without the bills of lading, there was nothing to show that the appellant is either entitled to the goods or that it has any locus standi to prosecute the suit. Their learned counsel submitted that having abandoned the claim on the bills of lading, there was nothing further for the appellant to pursue in the suit as it had thereby cut the earth underneath its feet. He argued that notwithstanding the fact that the respondents called no evidence at the trial, the court had to be satisfied that the evidence led by the appellant was credible. He argued that the bills Lading of exfacie showed the appellant, not as a consignee or endorsee who could rely on the provisions of section 375 of the Merchant Shipping Act, Cap. 244, Laws of the Federation of Nigeria, 1990 to become a party to the contract. According to learned counsel, the appellant was merely shown on the bills of lading as a notified party. He stressed that the appellant was under the wrong impression that there is a claim on bailment. He argued that from the pleadings and evidence there was no such claim before the court. He therefore urged the court to resolve issues four and five in favour of the respondents. It is now convenient at this stage to set out the more important averments in the pleadings of the parties which are relevant to the determination of the issues under consideration. These are contained in paragraphs 2 to 14 of the amended Statement of Claim and they are as follows:-

“2. The 1st defendants who are Common Carriers and bailees for reward are and were at all material times owners of the Vessel MV Cape Monterey.

3. The 2nd defendant was at all material times the Master of the Vessel MV Cape Monterey and the Agent of the 1st defendants.
4. On or about 29th July, 1981, 100,000 bags of white crystal Sugar hereinafter called “the goods”, were delivered on prepaid freight to the defendants in apparent good order and condition for carriage from Rotterdam to Apapa, Lagos, Nigeria and for delivery at Apapa in the like good order and condition to order notified to the plaintiff.
5. At the trial, the plaintiff will found on the various Bills of Lading numbered 1 – 10 dated 29th July, 1981 evidencing receipt of the said goods as aforesaid and signed by the Line Company as Agents of the Master of the Vessel and agent of the carrier.
6. The said Bills of Lading were sent by the shippers through United Bank for Africa Limited Lagos who endorsed the originals to the plaintiffs. The said original Bills of Lading marked: “Not To Be Released Unless Endorsed by United Bank For Africa Limited”.
7. Upon the receipt of the originals of the Bills of Lading endorsed to them, the plaintiffs presented same to Lagos & Niger Shipping Agencies Limited, of 4 Creek Road, Apapa Lagos (hereinafter called “Lagos & Niger”) who are agents for London & Overseas Express Freight Limited, the Line Company involved in the consignment herein.
8. When the plaintiffs presented the said original Bills of Lading to the said Lagos & Niger, Lagos & Niger issued to the plaintiffs in place of the said originals as is customary in the shipping trade, a Delivery Order with which to collect the consignment of sugar from the defendants’ ship then berthed at Berth 7, Apapa, Lagos.
9. The said consignment of sugar was delivered to the plaintiffs on the strength of the aforesaid Delivery Order.
10. The plaintiffs were at all material times the Importers of the said goods and are entitled to claim for their loss or non-delivery.
11. The delivery of the goods from the defendants to the plaintiffs was effected direct from the slip’s books into lorries provided by the plaintiffs during the discharge of the vessel.
12. In breach of the contract contained in or evidenced by the said Bills of Lading and in breach of their duty as Common Carriers and Bailees, the defendants, their servants and agents failed to deliver to the plaintiffs 3,434 bags of the said goods in the same good order and condition as when shipped or at all. At the trial of this action, the plaintiffs will rely on Nigerian Ports Authority Delivery Record and Tally Sheets Invoices for the consignment of Crystal Sugar dated at London the 7th August, 1981, Nigerian Ports Authority letter of 18th September, 1984 to the plaintiffs reference C/7/84/24 and the Original Bills of Lading with all the endorsements thereon.
13. Inspite of repealed demands the defendants have failed, refused or are unable to deliver the said goods or pay the sum in lieu thereof.
14. Whereof the plaintiffs claim from the defendants for non-delivery of the said goods by the defendants as common carriers and bailees for reward:

(i) The price (C & F) of 3,434 bags of sugar at U.S.$55,5 per bag payable at the current exchange rate of the Naira (Nigerian Currency)

(ii) General Damages………………….N25,000.00

(iii) Interest at 10% per annum from the date of the writ until judgment and thereafter at 5% per annum until judgment debt is finally liquidated.”

The respondents, in their amended Statement of Defence replied to the above averments as follows:

“2. The defendants and each of them admit paragraph 1 and 3 of the Further Amended Statement of Claim.

3. Save to admit that the 1st defendant was at all material times owner of the MV “Cape Monterey”, hereinafter referred to as the vessel, paragraph 2 of the Further Amended Statements of Claim is denied and the Defendants put the plaintiff to strict proof of the allegations therein contained in the said paragraph 2.
4. The defendants and each of them deny paragraphs 4 to 14 of the Further Amended Statement of Claim.
5. Further save that a total of 100,000 bags of white crystal sugar hereinafter referred to as the cargo were on board the MV Cape Monterey carried from Rotterdam to Apapa on or about 29th July, 1981, the defendants and each of them deny paragraph 4 of the Further Amended Statement of Claim.
6. In further denial of the averments contained in paragraphs 5 to 14 of the Further Amended Statement of Claim, the defendants and each of them deny the existence of Bills of Lading as pleaded by the plaintiff in the Further Amended Statement of Claim aforesaid and or the endorsement. Presentation, exchange and or delivery of the said Bills of Lading as pleaded by the plaintiff in the Further Amended Statement of Claim.
7. Further, if, which is denied, the Bills of Lading pleading by the plaintiff are endorsed, presented, exchanged or delivered as pleaded by the plaintiff in the Further Amended Statement of Claim, the defendants and each of them deny that the same vested title in the plaintiff to enable the plaintiff sue on the Bills of Lading aforesaid.
8. The defendants and each of them deny that the plaintiff has title to sue on the Bills of Lading relevant to the cargo aforesaid and will contend at the trial of this action that the plaintiff not having been named in the relevant Bills of Lading aforesaid as Consignee and or Endorsee of the cargo, the plaintiff has no locus standi to maintain and or prosecute the action herein against the defendants.
9. Further and or alternative in further denial of the said paragraphs 4 to 14 of the said Further Amended Statement of Claim, the defendants and each of them aver that 95,916 sound and whole bags of the cargo were delivered to the plaintiff from the vessel. The defendants will at the trial of this action rely on the several tally sheets issued by Lagos and Niger Shipping Agencies Ltd., who attended the discharge operations of the vessel at all material times to this claim.”

……………………………….

“14 Wherein the defendants and each of them say that the plaintiff’s claim should be dismissed with costs.”

The question may then be asked whether in the face of the above averments in the amended Statement of Claim, a claim on bailment was made by the appellant against the respondents in the suit.

In this regard, the trial court observed as follows:-

“Granted that an issue of tort of bailee and common carrier can be made out, it was not pleaded. In the face of abundant line of authorities, once it was not pleaded, it cannot be considered”

The Court of Appeal, for its own part, doubted whether there was any averment in the amended Statement of Claim on which a claim for negligence in bailment could be based. Said the Court of Appeal:-

“There was nothing left in his amended statement of claim above on which a claim for negligence can be based.

Worse still is that even if there was any pleading left about negligence there was no credible evidence led in support of such negligence.”

A careful study of the averments of facts in paragraphs 4, 8, 9, 10, 12 and 14 of the amended Statement of Claim leaves one in no doubt whatever that the appellant, not only fully pleaded facts which constitute bailment, but went further to plead bailment expressly, particularly in paragraphs 12 and 14 thereof. In paragraph 12 of the amended Statement of Claim, the appellant expressly pleaded breach by the respondents of their duty as common carriers and bailees of the consignment of sugar in question. So too, in paragraph 14 of the amended Statement of Claim, the appellant, again expressly, claimed from the respondents the reliefs already above indicated for non-delivery of the said goods by the respondents as “common carriers, and bailees for reward”. There is also the evidence of the appellant’s witnesses before the trial court which is in line with the averments in the amended Statement of Claim above set out.

I do not think it can be seriously argued, as contended by learned respondent’s counsel that from the pleadings and evidence before the court, the appellant made no claim on bailment. With great respect, I am unable to accept the views of the two courts below that a case of bailment as a tort was neither pleaded at all nor sufficiently. In my opinion, the one single claim before the court was that of bailment and I entertain no doubt that the state of the pleadings, particularly the appellant’s amended Statement of Claim, clearly bears this out.

I should, perhaps, observe that although at common law, bailment is often associated with a contract, this is not always the case. An action against a bailee can quite often be presented, not only as an action in contract, nor in tort, but as an action on its own sui generis, arising out of the possession had by the bailee of the goods. See: Building and Civil Engineering Holidays Scheme Management Ltd. v. Post Office (1966) 1 Q.B. 247 at page 260-261 per Lord Denning, M.R. The law of bailment, therefore, overlaps the categories of the law of contract, tort and, indeed, property and a bailee’s duty to take care with regard to the subject matter of the bailment can lie in contract or in tort. A plaintiff establishes a justiciable cause of action by proving a bailment on which a duty of care arises at common law on the part of the defendants not to be negligent in respect of the plaintiffs goods, independently of any contract, and a breach of that duty. See Jackson v. Mayfair Window Cleaning Co. Ltd. (1952) 1 All E.R. 215. The question whether a particular action falls within the ambit of contract or tort depends on the facts of the case, not on the form in which the action is brought. In my view, irrespective of contract, a claim in bailment lies in tort on the particular facts of the present case. The Court of Appeal, with respect, cannot therefore be right when it held that the moment the appellant withdrew its claim on contract, negligence on which it subsequently hung its case automatically became unsustainable.

The Court of Appeal would further appear to have held that to succeed in this class of cases, the particulars of negligence relied on must be clearly set out, pleaded and proved. It proceeded further to hold that the appellant failed to plead and prove any negligence against the respondents as a result of which its claims were bound to fail.

There can be no doubt that in this class of cases, the plaintiff, to succeed, must aver and establish facts which prima facie raise evidence of negligence against the defendants. But, with profound respect to the Court of Appeal. I am unable to accept that the appellant, on the facts of the present case, failed to establish a duty of care or aver negligence against the respondents. Nor am I prepared to hold that it is mandatory on the part of a plaintiff in bailment cases specifically to plead negligence and the particulars thereof in his Statement of Claim before his action can succeed, so long as the totality of the facts therein pleaded discloses a prima facie case of negligence against the defendant. So, in Chief D.O. Ogugua v. Armels Transport Limited (1974) N.S.C.C. 169 at 172, this court restated this principle of law on bailment as follows:-

“Dealing with the first point first, we think that there was no need on the part of the plaintiff in this case to plead negligence specifically. Once it is admitted by the parties (as was the case here) that the car was delivered to the defendants and that they failed to return its to the owner, we think that the onus on them to deliver the car to the plaintiff or satisfy the court that is loss not due to their carelessness”

Similarly, on Panalpina World Transport Nig. Ltd. v. M.T. Wariboko (1975) All N.L.R. 24 at 28, this court per Coker, J.S.C. succinctly put the matter as follows:-

We consider that the mere fact that the defendant/appellant failed to deliver to the plaintiff the goods which they had undertaken to transport to Port Harcourt is prima facie evidence of negligence; and as the onus of disproving negligence rested on them, we cannot but agree with the learned trial Judge that that onus was never discharged. It is settled law that, in bailment the onus of proving that there is no negligence is on the bailee.”

In the present case, a consignment of 100,000 bags of sugar was as per the pleadings and the evidence before the court handed over to the respondents for delivery to the appellant at Apapa, Lagos for valuable consideration. The said consignment was short-delivered to the appellant by a total of 3,434 bags. I will later in this judgment deal with the onus on the respondents; as bailees, to deliver the full consignment of the 100,000 bags of sugar to the appellant or satisfy the court that their loss was not due to any negligence on their part.

There is next the important issues whether the appellant’s abandonment of its head of claim on contract based on the bills of lading, Exhibits B1-B10, is tantamount to an abandonment of the appellant’s case and whether the Court of Appeal was right in failing to countenance the said bills of lading and other relevant evidence led by the appellant in the case. In this regard, the learned trial Chief Judge after reviewing the evidence led on behalf of the appellant observed as follows:-

“All these evidence show that the case is woven around Bills of Lading and if they are removed, the whole case will collapse. The effect of the plaintiff abandonment of the issue of Bills of Lading is that he has abandoned his case. The evidence of the two witnesses he called relate to Bills of Lading or effect or result of them. If Bills of Lading are to be discountenanced, ipso facto the evidence relating to them cannot be considered because they cease to exist.”

A little later in his judgment, the learned trial Chief Judge continued thus-

Having accepted on the foregoing authorities that parties and court are bound by pleadings and the plaintiff having voluntarily abandoned their case on Bills of Lading, I hold that all evidence of the Bills of Lading are to no issue and are rejected. I do not found any issue left once the issue of the Bills of Lading is withdrawn. The issue of Bailee and Common Carrier are interwoven and inseparable from the issue of the Bills of Lading.”

The Court of Appeal in endorsing the above findings of the learned trial Judge had this to say –

“A close examination of the above pleadings and evidence led shows that the appellant’s case is tied up with the bills of lading……………………….When therefore, the counsel for the plaintiff at the lower court stated that:-

“We are abandoning claim on bills of lading that is for breach of contract. We only claim on negligence.”

at the close of the case, the main stay of the case pleaded and presented would appear destroyed!”

With profound respect, I am unable to accept the above views and conclusions of both courts below as well founded.

In this regard, attention must again be drawn to paragraph 13 of the amended Statement of Claim wherein the appellant couched its claim in both breach of contract and in negligence as a result of alleged breach of the respondents’ duty as common carriers and bailees. By paragraph 14 of the amended Statement of Claim, the appellant specifically claimed against the respondents –

“…………for non-delivery of the said goods by the defendants as common carriers and bailees for reward”

When, therefore, the appellant abandoned its claim on breach of contract and stated it was relying on its claim in negligence as pleaded in paragraph 14 of the amended Statement of Claim, it would seem to me that it was acting well within its legal rights. Nor did such course of action destroy the main stay of the appellant’s case as pleaded and presented or at all as both courts below, with respect, erroneously concluded. It cannot, in my view be right to construe the aforementioned innocuous indication from the appellant as an abandonment of its entire case as suggested by the Court of Appeal. All the appellant did was to abandon its claim on contract but without prejudice to pursuing its claim in negligence against the respondents. This, it was perfectly entitled to do.

In this connection, a distinction must be drawn between the withdrawal or abandonment of a head or an arm of several causes of action in a suit as against the withdrawal of say, an Exhibit, tendered in a suit but subsequently withdrawn without objection. Once a head or an arm of several causes of action or reliefs is withdrawn or abandoned, such an abandoned or withdrawn cause of action or relief automatically ceases to exist or to constitute an issue between the parties in the cause but without prejudice to the determination of the remaining life issues in the suit between the parties. But the abandonment of a head of claim does not and cannot tantamount to an abandonment of all or any admissible evidence properly led in a cause and relevant to the determination of the life issues in the suit. Accordingly, when the appellant’s learned counsel abandoned his claim in contract, the bills of lading, Exhibits B1-B10 remained legal, admissible and relevant evidence before the court and ought not to have been discountenanced by the trial court or the Court of Appeal. In my view, both courts below were, with respect, in error by holding that the abandonment of the appellant’s claim in contract was synonymous with an abandonment of Exhibits B1-B10 and all other evidence relating thereto. Those Exhibits, without doubt, are inter alia relevant in the determination of the appellant’s locus standi in the suit as the legal consignee of the goods, an issue which appeared to be in dispute between the parties in the claim relating to the bailment in question.

At the risk of repetition, I do not think it can be over-emphasized that the liability of a bailee may rest on an express contract between him and the owner of the goods concerned. However, this notwithstanding, there is generally the collateral liability in tort for negligence which arises from the breach of a legal duty owed by the bailee to the owner of the goods. Both causes of action were specifically pleaded in the writ of summons filed in the present case and in the appellant’s amended Statement of Claim. I entertain no doubt that the appellant was entitled to abandon its cause of action in contract and to prosecute its claim in tort. See Holts Transport Ltd. v. K. Chellarams and Sons (Nig.) Ltd. (1973) I All NLR 165 at 171;.Jarvis v. Moy Davies, Smith, Vanderell & Co. (1936) 1 K.B. 399 and Jackson v. Mayfair Window Cleaning Co. Ltd. (1952) I All E.R. 215. The Court of Appeal was therefore in error when it held that the abandonment of the appellant’s claim in contract destroyed the appellant’s action, and as a result of which it wrongly dismissed the same, In the circumstance, the answers to issues 4 and 5 must be in the negative.

Turning now to issues 1, 2 and 3, I think the first point that must be made for a better appreciation of their resolution is that where evidence given by a party to any proceedings is not cross-examined upon or challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the matter to act on such unchallenged evidence before it as established. See: Isaac Omoreghe v. Daniel Lawani (1980) 3-4 S.C. 108 at page 117, Odulaja v. Haddad (1973) 11 S.C. 357; Nigerian Maritime Services Ltd. v. Alhaji Bello Afolabi (1978) 2 S.C. 79 at 81 and Adel Boshali v. Altied Commercial Exporters Ltd. (1961) 2 SCNLR 322; (1961) All NLR 917. So, too, where the defendant offered no evidence, the plaintiff’s evidence before the court under such circumstance clearly goes one way with no other evidence to be placed on the other side of the proverbial imaginary balance as against such evidence given by or on behalf of the plaintiff. The onus of proof in such a case is discharged on minimal of proof. See Nwahuoku v. Ottih (1961) 2 SCNLR 232; (1961) 1 All NLR (Pt. 2) 489 at page 490, Oguma v. I.B.W.A.(1988) 1 NWLR (Pt. 73) 658 at page 682 and Balogun v. UB.A. Ltd. (1992) 6 NWLR (Pt. 247) 336 at page 354.

In the present case, two witnesses testified for and on behalf of the plaintiff. According to their evidence, the 1st respondent is the owner of the ship, “M.V. Cape Monterey” which on the 29th July, 1981 was concerned with the transportation of the 100,000 bags of white crystal sugar from Rotterdam to Apapa for reward. The 2nd respondent was at all material times the master of the ship and agent of the 1st respondent. The invoices in respect of the consignment, Exhibits A1-A10 together with the relevant bills of lading covering them were tendered in evidence as Exhibits B1-B 10. This consignment of sugar was the property of the appellant. When the said consignment arrived in Nigeria in August 1981, only 96,566 bags were discharged and delivered direct from the ship’s hooks to the appellant with a balance of 3,434 bags either lost or missing. This shortage was confirmed by the Nigerian Ports Authority letter Exhibit C. The appellant’s case is that despite repeated demands, the respondents had failed and/or neglected to deliver the missing 3,434 bags of sugar to the said appellant. The value (C & F) of each of the said bags was U.S. $55.5, The appellant then claimed as per the writ of summons.

It has to be stressed that none of these two witnesses was cross-examined in any way by the respondents at the trial. It cannot therefore be disputed that this is a case where the appellant’s evidence before the court was not challenged in any manner by the respondents who had the opportunity of doing so. With profound, respect, I am unable to accept the finding of the court below that there was no credible evidence led in support of the negligence alleged by the appellant. The appellant’s evidence, in the absence of any other contrary factors was liable to be accepted and acted upon both by the trial court and the Court of Appeal.

There is, secondly, the situation that the respondents offered no evidence before the trial court but rested their defence with the evidence led on behalf of the appellant. The evidence before the court therefore, went one way with nothing on the other side of the balance as against the cogent evidence given on behalf of the appellant. The onus of proof in such a case, as I have observed, is discharged on a minimal of proof and I entertain no doubt that in the circumstances of the evidence led before the trial court, both courts below were in grave error by their failure to act on the unchallenged evidence led on behalf of the appellant in considering whether or not the appellant had established its case against the respondents. There is finally the issue of pleadings filed in the suit. A close study thereof conclusively discloses admissions by the respondents that the 1st respondent was the owner of the ship “M. V. Cape Monterey” in which the 100,000 bags of sugar were transported to Apapa and that the respondents short-delivered the said consignment of sugar to the appellant. The next question must be whether the trial court and the court below were right in dismissing the appellant’s claims in the face of the above admissions in the pleadings of the parties and the clear, concise, uncontradicted and unrebutted evidence of the appellant’s witnesses as above indicated.

It is perhaps, more convenient, at this stage to dispose of the respondents’ contention to the effect that the appellant not being the endorsee or consignee in the bills of lading, Exhibits B1-8 10, had no locus standi to prosecute this action. The law is well settled that where it is sought to prosecute an action on a bill of lading itself by a plaintiff whose name does not appear (other than the reference to his being notified) on the relevant bill and he is therefore neither the endorsee nor the consignee therein indicated, such a plaintiff in law has no locus standi to sue upon the bill See Fasasi Adesanya v. Leigh Hoegh and Co. (1968) 1 All NLR 333. See too section 375 of the Merchant Shipping Act, Cap. 224, Laws of the Federation of Nigeria 1990. A close scrutiny of the bills of lading, Exhibits 81-8 10 however discloses in no uncertain terms that the consignee therein endorsed is Broadline Enterprises Limited, the appellant in the present case. This is clearly indicated in the stamp affixed against the consignee’s column in the said bills of lading. It is also clear that apart from the appellant being the consignee in the relevant bills of lading, it is additionally shown in the appropriate column of the bills as the notified party thereof. I think, with respect, that learned counsel for the respondents was in definite error when he submitted that the appellant had no locus standi to bring this action since he was not the consignee or endorsee shown in the bills of lading.

The appellant being the consignee duly endorsed on the said bills of lading, as I have stated, was entitled and had locus standi to prosecute the suit. Now, returning to the dismissal of the appellant’s claims, the stand of the court below is that there was no evidence that the respondents owed any duty of care to the appellant particularly as there was no evidence that the bailment was for reward. The first point that must be made is that there is clear averment in paragraph 14 of the Statement of Claim that the bailment was for reward or valuable consideration. There was also evidence from P.W.1 in line with the said averment that the bailment was for valuable consideration. The Court of Appeal was therefore in error to have held otherwise. At all events, the law seems to me clear that whenever goods belonging to one person are unconditionally entrusted to the care of another for whatever purpose, whether gratuitously or for reward, on the clear understanding that the goods shall ultimately be returned to the owner, failure to do so raises a presumption of negligence against the offending party. See Panalpina World Transport (Nigeria) Limited v. N. T. Wariboko (1975) All N.L.R. 24. In bailment, therefore, the onus of proof is always on the bailee to show that the loss of or damage to the goods entrusted to him occurred without negligence or default on his part. See: Ogugua v. Armels Transport Ltd. (1974) N.S.C.C. 169, at 172, Coldman v. Hill (1919) 1 K.B.443, and Houghland v. R. R. Low (Luxury Coaches) Ltd. (1962) 1 Q.B. 694 at 697-698. So long as the claim, as in the present action, is properly framed and worded, bailors do not escape liability unless they establish that the loss occurred in some way not involving their negligence and they would be liable if they adduce no satisfactory explanation of how the loss occurred. See Woolmer v. D. Price Ltd. (1955) 1 All E.R. 377 and Coldman v. Hill, supra.

In the present case, there is uncontroverted and unchallenged evidence that 100,000 bags of sugar were entrusted to the respondents for delivery to the appellant at Apapa. There is further uncontradicted evidence that 3,434 bags of the said consignment of sugar were lost or missing. The respondents, by paragraph 10 of their further amended Statement of Defence alleged that the short delivery of the bags of sugar was caused by the inefficient and careless handling operation of the discharge mechanism by the Stevedores who, by the custom of the port, were the only persons authorised to discharge the cargo at Apapa. No iota of evidence was, however, called by them to establish this relevant defence.

In this regard, the point must once again be made that it is one thing to aver or plead a material fact in issue in one’s pleadings and quite a different thing to establish or prove such a fact to the satisfaction of the court. Averment of a fact in issue in pleadings must be distinguished from proof of such a fact. An averment in pleadings is not tantamount to evidence and cannot be so construed as such. Accordingly, it has to be proved or established by evidence subject, however, to any admissions made by the other party in his own pleadings in respect thereof. See: Akinfosile v. Ijose (1960) SCNLR 447; Muraina Akanmu v. Adigun and Another (1993) 7 NWLR (Pt. 304) 218 at 231; Ohmiami Brick & Stone Ltd. v. F A.C.B. Ltd. (1992) 3 NWLR (Pt. 229) 260 at 293; Anyah v. A.N.N. Ltd. (1992) 6 NWLR (Pt. 247) 319 at page 331; Honika Sawmill (Nig) Ltd. v. Mary Hoff (1994) 2 NWLR (Pt. 326) 252 at 266 etc. The onus, in the present case, is on the respondents to establish that the loss of the 3,434 bags of sugar entrusted to them occurred without negligence or default on their part. See Ogugua v. Armels Transport Ltd. (supra), etc. etc. This onus, they failed to discharge in so far as they neither offered any evidence at the trial nor did they challenge or cross-examine the appellant’s witnesses on any issues they testified upon. I therefore entertain no doubt that issues 1, 2 and 3 must again be answered in the negative.

The position in the present case is that the respondents, as bailees, were entrusted with a consignment of 100,000 bags of sugar for shipment from Rotterdam to Apapa in July 1981. The consignment was delivered by the respondents to the consignee, the appellant and owners of the sugar, less 3,434 bags. The respondents despite repeated demands failed to account for the loss of the 3,434 bags of sugar nor were they able to establish that their loss occurred without negligence or default on their part. With profound respect, it seems to me quite clear that had both the trial court and the court below properly directed themselves to the established facts of this case together with the appropriate law applicable thereto, they would have had no difficulty .in finding for the appellant on the issue of liability in respect of the missing bags of sugar. See Panalpina World Transport Nigeria Ltd. v. N. T Wariboko, supra. In my view, both the trial court

and the court below, were, with respect, in gross error by their outright dismissal of the appellant’s claims in their entirety.

The appellant’s claims were for –

“(i) The price (C & F) of 3,434, bags of sugar at U.S. $55.5. per bag payable at the current exchange rate of the Naira (Nigerian Currency).

(ii) General Damages……………N25,000.00

(iii) Interest at 10% per annum from the date of the writ until judgment and thereafter at 5% per annum until judgment debt is finally liquidated.”

Regrettably, these reliefs were not considered at all by the courts below following their findings that the appellant’s cause of action had not been established. In particular, the learned trial Chief Judge ought to have dealt in his judgment with the issue of the various damages claimed by the appellant in case he was found to be in error by the appellate court in his dismissal of the plaintiff’s action. In this connection, it cannot be over-emphasized that in cases involving the assessment of damages, it is the duty of a trial court to make the necessary findings and to assess the damages proved and payable even if that court had decided that the claimant’s entitlement thereto had not been established. This will obviate the necessity of remitting a case to the trial court for the assessment of such damages in the event of an appellate court finding in favour of the claimant. See Kareem & Ors v. David Ogunde & Anor (1972) All NLR (Pt.1) 73; Alhaji Bello v. The Diocesan Synod of Lagos & Ors. (1973) 1 All NLR (Pt. 1) 247 and Abilawon Ayisa v. Olaoye Akanji & Ors (1995) 7 NWLR (Pt. 406) 129 at page 143.

The first relief claimed relates to the price of the missing 3,434 bags of sugar. Their given price (C & F) at U.S. $55.5 per bag was neither controverted nor disputed by the respondents. The respondents, not having accounted for their loss nor established that the same occurred without negligence or default on their part must, in law, be liable for their value which on the evidence amounts to U.S. $190,587 as claimed.

There can be no doubt that the courts, in appropriate cases, have the power and jurisdiction to enter judgment in favour of a party in the foreign currency claimed. See Miliangos v. George Frank (iles) Ltd. (1975) 3 All ER 80 1. The appellant’s claim under the first relief was admittedly in U.S. dollars per bag payable at the relevant exchange rate of the Nigerian Currency, the Naira. It is crystal clear to me that the appellant is entitled to judgment against the respondents in the sum of U.S. $190,587.00 being the value or price of the 3,434 bags of sugar short-delivered to the said appellant by the respondents. This amount shall however be payable by the respondents to the appellants at the relevant rate of the Naira.

The claims in respect of the N25,000.00 general damages and interest on the judgment debt until the same is fully liquidated were also not considered by both courts below. As already observed, the appellant’s claim was grounded in the tort of negligence as a result of the respondents’ breach of duty as common carriers and bailees. General damages are such as the law implies or presumes of the action complained of and I think that the appellant, apart from the special damages for the value of the 3,434 bags of sugar short-delivered to it by the respondents, is entitled to general damages for this loss.

Where an appellate court is in as good a position as the trial court to assess an item of special or general damages, the appellate court will be entitled to assess such damages and avoid remitting the case unnecessarily to the trial court for determination of the issue where the trial court failed to assess such special or general damages, See Ubani-Ukoma v. Nicol (1962) 1 SCNLR 176; (1961-62) Vol. 2 NSCC 73. I have considered the quantum of general damages the appellant may be entitled to in this case and find N5,000.00 not unreasonable. Accordingly the appellant is hereby awarded N5,000.00 as general damages for the respondents’ negligence. The appellant is not entitled to any award of interest as claimed and the same must be dismissed.

In the final result and all the issues having been resolved in favour of the appellant, this appeal succeeds and it is hereby allowed. The judgments of both the trial court and the court below together with the orders for costs therein made are hereby set aside. In substitution thereof, judgment is hereby entered for the appellant against the respondents in the sum of U.S. $190,587.00 payable at its relevant Naira equivalent and being the value or price of the 3,434 bags of sugar short-delivered by the respondents to the appellant. The appellant is awarded 5,000.00 as general damages for negligence but the claim for interest is hereby dismissed. There will be costs to the appellant against the respondents which I assess and fix at N 1,000.00 in this Court, N600.00 in the court below and N500.00 in the trial court.

UWAIS, J.S.C.: I have had the advantage of reading in advance the judgment read by my learned brother Iguh, J.S.C. For the reasons which he had given therein I too will allow this appeal. Accordingly, the appeal succeeds and it is hereby allowed. I adopt the order contained in the said judgment.

WALI, J.S.C. I have had a preview of the lead judgment of my learned brother, Iguh, J.S.C. I agree with the reasons proffered by him for allowing this appeal. The simple facts of the plaintiffs case are as averred in the following paragraphs of his amended statement of claim:-

“4. On or about 29th July, 1981, 100,000 bags of white crystal sugar hereinafter called “the goods”, were delivered on prepaid freight to the defendants in apparent good order and condition for carriage from Rotterdam to Apapa, Lagos Nigeria and for delivery at Apapa in the like good order and condition to order notified to the plaintiff.

“X X X X X

6. The said bills of lading were sent by the shippers through United Bank for Africa Limited Lagos who endorsed the originals to the plaintiffs. The said original bills of lading were marked, “Not to he released unless endorsed by United Bank for Africa Limited”.
7. Upon the receipt of the originals of the bills of lading endorsed to them, the plaintiffs presented same to Lagos & Niger Shipping Agencies Limited. of 4, Creek Road Apapa Lagos (hereinafter called “Lagos & Niger”) who are agents for London & Overseas Express Freight Limited, the line company involved in the consignment herein.
8. When the plaintiffs presented the said original bills of lading to the said Lagos & Niger, Lagos & Niger issued to the plaintiffs in place of the said originals as is customary in the shipping trade, a delivery order with which to collect the consignment of sugar from the defendants’ ship then berthed at Berth 7, Apapa, Lagos.
9. The said consignment of Sugar was delivered to the plaintiffs on the strength of the aforesaid delivery order.
10. The plaintiffs were at all material times the importers of the said goods and are entitled to claim for their loss or non-delivery.
11. The delivery of the goods from the defendants to the plaintiff was effected direct from the ship’s hooks into lorries provided by the plaintiffs during the discharge of the vessel.
12. In breach of the contract contained in or evidenced by the said bills of lading and in breach of their duty as common carriers and bailees, the defendants, their servants and agents failed to deliver to the plaintiffs 3,434 bags of the said goods in the same good order and condition as when shipped or at all. At the trial of this action, the plaintiffs will rely on Nigeria Ports Authority Delivery Record and Tally Sheets, Invoices for the consignment of Crystal Sugar dated at London the 7th August, 1981, Nigerian Ports Authority letter of 18th September, 1984 to the plaintiffs referenced C/7/84/24 and the original bills of lading with all the endorsements thereon.
13. Inspite of repeated demands the defendants have failed, refused or are unable to deliver the said goods or pay the sum in lieu thereof. Whereof the plaintiffs claim from the defendants for non-delivery of the said goods by the defendants as common carriers and bailees for reward:

(i) The price (of 3,434 bags of sugar at U.S. $55.5 per bag payable at the current exchange rate of the Naira (Nigerian Currency)

(ii) General damages – N25,000.00″

The defendants denied the plaintiffs claim particularly in the following paragraphs of their joint further amended statement of defence:-

“5. Further save that a total of 100,000 hags of white crystal sugar hereinafter referred to as the cargo were on board the MV CAPE MONTEREY carried from Rotterdam to Apapa on or about 29th July, 1981, the defendants and each of them deny paragraph 4 of the Further Amended Statement of Claim.

6. In further denial of the averments contained in paragraphs 5 to 14 of the further amended statement of claim, the defendants pleaded by the plaintiff in the further amended statement of claim aforesaid and or the endorsement, presentation, exchange and or delivery of the said hills of lading as pleaded by the plaintiff in the further amended statement of claim.
7. Further, if, which is denied, the bills of lading pleaded by the plaintiff are endorsed, presented, exchanged or delivered as pleaded by the plaintiff in the further amended statement of claim, the defendants and each of them deny that the same vested title in the plaintiff to enable the plaintiff sue on the bills of lading aforesaid.
8. The defendants and each of them deny that the plaintiff has title to sue on the bills of lading relevant to the cargo aforesaid and will contend at the trial of this action that the plaintiff not having been named in the relevant bills of lading aforesaid as consignee and or endorsee of the cargo, the plaintiff has no locus standi to maintain and or prosecute the action herein against the defendants.
9. Further and/or alternatively, in further denial of the said paragraphs 4 to 14 of the said further amended statement of claim, the defendants and each of them aver that 95,916 sound and whole bags of the cargo were delivered to the plaintiff from the vessel. The defendants will at the trial of this action rely on the several tally sheets issued by Lagos and Nigeria Shipping Agencies Ltd., who attended the discharge operations of the vessel at all material times to this claim.
10. Further, the defendants and each of them aver that a further 1,708 bags of the cargo were delivered as rebags out of 4,076 broken bags to the plaintiff. The said rebags were as a result of inefficient/careless handling/operation of discharge mechanism by the stevedores who by the custom of the port, were the only people authorized to discharge the cargo at Apapa.

PARTICULARS

(a) The rope slings by which the cargo was discharged by the stevedores were fastened too tightly thereby creating pressure on bags of sugar causing the same to break and split open.

(b) The contents remaining in the broken bags were then put into sound bags and delivered to the plaintiff. The defendants will rely on the Protest Notes dated 11th, 14th and 20th September, 1981 by the 2nd defendant as the Master of the said vessel.”

During the trial two witnesses testified for the plaintiff through whom various documents were tendered and admitted in evidence without objection. The two witnesses called by the plaintiff were also not cross-examined.

Learned counsel for the defendants did not call any witness and rested his case on that of the plaintiff.

Both learned counsel addressed the court. In a considered judgment delivered by Belgore, J. (as he then was), after reasoning as follows:-

“From this authority it is evident that if the plaintiff only pleaded bills of lading in his statement of claim, he could not at a later stage base his case on an issue he did not plead.”

“X X X X X

“All these evidence show that the case is woven around bills of lading and if they are removed, the whole case will collapse. The effect of the plaintiff abandonment of the issue of bills of lading is that he has abandoned his case. The evidence of the two witnesses he called relate to Bills of Ladings or effect or result of them. If Bills of Lading are to be discountenanced, ipso facto the evidence relating to them cannot be considered because they cease to exist.

Granting that an issue of tort of bailee and common carrier can be made out, it was not pleaded.”

X X X X X

“The issue of bailee and common carrier are interwoven and inseparable from the issue of the bills of lading.

But even, if it can be held that the issues of bailee and common carrier are separable from that of the issues of bills of lading then there is no evidence that the defendants owed any duty of care to the plaintiff. There is no evidence of any reward paid to the defendant for carrying the goods once evidence of the bills of lading is disregarded.

He concluded thus:-

“On the whole I found no case established against the defendant. The case on bills of lading was withdrawn by the plaintiff. The issue of bailee and common carrier was not pleaded independently of the issue of bills of lading and if however it was pleaded, and can be said to amount to independent pleading, then there is no evidence of any duty of care owed by the defendant to the plaintiff. In the circumstances enumerated, the plaintiff’s case must be dismissed and it is hereby dismissed with costs.”

Aggrieved with the dismissal of his case by the trial court, the plaintiff appealed against it to the Court of Appeal. In a unanimous judgment of the Court of Appeal (Akpata, Babalakin. J.J.C.A. (as they then were) and Awogu, J.C.A.). Babalakin. J.C.A. opined thus in his lead judgment:-

“It must be understood that it is not the bailment of the goods to the respondents simpliciter that gave rise to this action but the alleged short delivery of same and no evidence of such short delivery is now available by the withdrawal of a claim based on the bills of lading which have shown whether the goods were short delivered or not.” The plaintiff’s appeal was then dismissed.

The plaintiff has now further appealed to this court.

From now on both the plaintiff and the defendants will be referred to in this judgment as “appellant” and “respondents” respectively.

Both parties filed and exchanged briefs of arguments in compliance with the Rules of this court. In the brief filed by the appellant, the following five issues were formulated for determination in this appeal:-

“(i) Whether having regard to the pleadings and evidence led in support on the record, the Court of Appeal was justified in dismissing the appellant’s appeal.

(ii) Whether the Court of Appeal properly evaluated and appraised the pleadings and evidence led in support of the appellant’s claim.

(iii) Whether the Court of Appeal was right in saying that there was no evidence to support the plaintiffs claim for negligence.

(iv) Whether an abandonment of a head of claim by counsel is tantamount to an abandonment of the evidence led in the case.

(v) Whether the learned trial Justices of the Court of Appeal were right in disregarding Exhibits B1-B10, that is the Bill of Lading and other pieces of evidence led in this case as they did.”

On their part, the respondents raised in their brief, three issues for consideration by this court and these are:-

“1. What issues were joined on the pleadings

2. After the giving of evidence but before the address of counsel, what issues if any remained joined after plaintiffs declaration of abandonment of claims on bills of lading that is for breach of contract
3. Of the issues joined what was proved by evidence”

For determining this appeal, I shall adopt the issues formulated in the appellant’s brief into which the three issues formulated in the respondents’ brief are subsumed.

Issues (i), (ii) and (iii) are covered by Grounds 1, 2, and 3 of the appellant’s Grounds of appeal. It is the submission of learned counsel for the appellant that a thorough and painstaking consideration of the pleadings in the case will reveal admission by the respondents that they short-delivered 2,376 bags out of the 100,000 bags of white crystal sugar given to them for delivery at Apapa, Lagos Nigeria and cited paragraph 9 and 10 of the respondents’ further amended statement of defence. He contended that this admission of short-delivery occasioned by the respondents’ negligence, make them prima facie liable in negligence and the onus is on them to disprove it. He cited and relied in support, the case of Panalpina World Transport (Nig.) Limited v. Wariboko (1975) 1 All NLR 24 at 28. Learned counsel also submitted that the Court of Appeal erred in ignoring and disregarding the respondents’ admission highlighted (supra) which resulted in miscarriage of justice. Learned counsel further cited and relied on Order 31 rule 12 of the Federal High Court (Civil Procedure) Rules, 1976 and some other decided cases.

On Issues (iv) and (v) which are also covered by Grounds (4) and (5) of the Grounds of Appeal, learned counsel for the appellant strenuously argued that issue of respondents’ negligence as common carriers and bailees was pleaded in paragraphs 13 and 14 of the amended statement of claim and the fact that he said in the course of the proceedings in the court below that:-

“We no longer rely on the breach of contract evidenced by the Bill of Lading; we rely on the tort of negligence arising from the breach of legal duty owed to us by the defendant in the circumstances as bailees.” could not be understood to mean that he was abandoning his entire case and submitting to judgment as wrongly understood by the Court of Appeal. He contended that a party may abandon any head of his claim in an action without abandoning the evidence already adduced to prove the remaining other heads of claim. He said that Exhibits B1-B10 i.e. the bills of lading could still be used to establish the collateral common law duty of a bailee towards the owner of the goods and that the trial court and the Court of Appeal misdirected themselves in ignoring the said Exhibits to find a collateral duty of care in tort against the respondents in favour of the appellants. He relied on Holts Transport v. Chellarams (1973) 3 SC 59; (1973) All NLR (Pt.1) 202; Jackson v. Mayfair (1952) 1 All ER 215 and Turner v. Stallibrass (1898) 1 QB 53. He urged this court to allow the appeal and enter judgment for the appellant in term of the reliefs sought in the amended statement of claim.

In answer to the appellant’s submissions, learned counsel for the respondents submitted that all the averments contained in the Amended statement of claim had been sufficiently traversed to the further amended statement of defence. Learned counsel particularly referred to paragraph 2 of the amended statement of claim which was denied by paragraph 3 of the further amended statement of defence; and paragraphs 4 to 14 of the amended statement of claim which were denied by paragraph 4 of the further Amended Statement of Defence. He contended that the admission by the respondents in paragraph 9 of the further amended statement of defence was an alternative argument in further denial of the averments in the amended statement of claim which was put in issue. Learned counsel submitted that the mere delivery of cargo to the receiver without showing that the Bills of Lading were addressed to him as the owner of the cargo and if not, endorsed to the receiver as “endorsee” or “consignee”, does not ipso facto prove ownership by him of the cargo or his right to sue on them. He said the abandonment of the bills of lading in this case put an end to the appellant’s claim since they are inevitable and necessary evidence in proving the claim. He cited the following cases in support. Holts Transport Ltd. v. K. Chellaram & Sons (Nig.) Ltd. (1973) All NLR 165; Panalpina v. Wariboko (1975) All NLR 24 and Intercotra Ltd. v. Cooperative Supply Association Ltd. (1969) All NLR 112. Learned counsel further submitted that the appellant did not plead negligence but it was only raised by learned counsel for the appellant in his final address in the court below and he as counsel for the defendants in the trial court unwittingly succumbed to the error by implying in his address that there was a claim in negligence that could be pursued”. He further contended that:-

“Merely averring in paragraph 14 of the amended statement of claim that a party is a “common carrier and bailee” for reward…….does not, without evidence, turn such party into the ‘common carrier’ alleged or the ‘bailee for reward” alleged.”

He cited in support paragraph 447 at page 282 ,paragraph 1801 at page 830 and paragraph 401 at page 309 of Volumes 43, 2 and 5 respectively of Halsbury’s Laws of England (4th Edition) and Professor Wilson, carriage of goods by sea (2nd Edition) at page 153.

Learned counsel finally urged the court to dismiss the appeal as lacking in merit and substance.

From the resume of arguments above, it is my view that the issues for determination can be re-formulated as follows for resolution by this court:-

1. Whether the amended pleadings of the appellant had pleaded negligence, and if so, whether same had been sufficiently traversed by the respondents.
2. Whether the appellant could no longer use Exhibits B1-B10 to prove negligence after abandoning his claim in contract, and
3. Whether Exhibits B1-B10 were endorsed to appellant as “consignee” or end “endorsee” of the goods carried by the 2nd respondent at the instance of the 1st respondent, to give the appellant a cause of action in tort which could give him a right to sue for the short delivery of the goods to him.

Before I consider the issues re-formulated above, it is pertinent to deal with a point that I noticed in the appellant’s brief of argument to wit basing his arguments on the grounds of appeal rather than on the issues formulated. This procedure has been deprecated in several judgments of this court as it is contrary to the intendment of Order 6 rule 5(1) of the Supreme Court Rules, 1985. See: Chinweze & Anor v. Masi & Anor (1989) 1 NWLR (Pt. 97) 254; (1989) 1 SCNJ 148 particularly at 154 and Western Steel Works & Iron & Steel Workers Union (1987) 1 NWLR (Pt.49) 284. But the respondent did not complain against this wrong procedure adopted by the appellant in writing his brief. This court did not also raise the point. The non-compliance with Order 6 rule 5(1) strictly would be deemed to have been waived since the appeal had been argued. See: Order 10 rule 1(1) and (2) of the Supreme Court Rules, 1985. In paragraph 12 of the Amended Statement of Claim, the appellant pleaded thus:

“In breach of the contract contained or evidenced by the said bills of lading and in breach of their duty as common carriers and bailees, the defendants, their servants and agents failed to deliver to the plaintiff 3,4M bags of the said goods in the same good order and condition as when shipped or at all……..”

(italics supplied for emphasis).

In order to determine whether the appellant can maintain action in tort, the substance of the case must be looked at and not the form of the pleadings. See Bryant v. Herbert (1878) 3 C.P.D. 339. The appellant’s case was that the 1st respondents were common carriers and bailees for reward and were therefore liable for the loss of the goods short delivered due to its negligence and breach of duty.

It is pertinent again to look at both the writ and the amended statement of claim wherein the appellant as plaintiff claimed in the amended statement of claim that: –

“In breach of their duty as common carriers and bailees the defendants, their servants and agents failed to deliver to the plaintiffs 3,434 bags of the said goods in the same good order and condition as when shipped or at all………….Whereof the plaintiff claim from the defendants for non-delivery of the said goods by the defendants as common carriers and bailees for reward:

“The price (C & F) of 3,434 bags of sugar at U.S. $55.5 per bag payable at the current exchange rate of the Naira (Nigeria currency)………and General Damages of N25,000.00.”

The 1st respondents’ case was a denial of the existence of the bills of lading (Exhibits B1 – B10) as pleaded by the appellants in their amended statement of claim or that even if the said bills of lading (Exhibits B1-B10) were endorsed, presented, exchanged or delivered to the appellant as pleaded, that did not vest title in the appellant to sue on the said bills of lading.

I have painstakingly read through the appellant’s pleading as a whole and I have no difficulty in arriving at the conclusion that sufficient facts of the 1st respondents’ negligence resulting in their failure to deliver part of the goods consigned to the appellant to wit:- 3, 434 bags of sugar have been pleaded. See Bryant v. Herbert (18/8) C. P. 389. I am also satisfied from the facts pleaded and the evidence adduced that the 1st respondents were bailees for the goods consigned for delivery to the appellant. See: Turner v. Stallibrass & Ors. (1898) 1 QB 56, particularly at 59 where Collins L. J in his concurring judgment elaborated on the law as follows:-

“I think some confusion may possibly arise from the expression of the rule on this subject as being that the test is whether the plaintiff is obliged, in order to maintain his action, to rely on a contract. The relation of bailor and bailee must arise out of some agreement of the minds of the parties to it; but that agreement of minds is not the contract contemplated by that mode of expressing the rule to which I refer, such an agreement of minds is presupposed in the case of any relation which brings about the common law liability of a bailee to his bailor. Where such a relation is established, the result of the cases appears to be that, if the plaintiff can maintain his action by shewing the breach of a duty arising at common law out of that relation, he is not obliged to rely on a contract within the meaning of the rule; but, if his cause of action is that the defendant ought to have done something, or taken some precaution, which would not be embraced by the common law liability arising out of the relation of bailor and bailee, then he is obliged to rely on a contract within the meaning of the rule.”

The learned trial Judge in considering the pleadings and the rule evidence opined thus:-

“Having accepted……and the plaintiff having voluntarily abandoned their case on the bills of lading, I hold that all evidence of the bills of lading are to no issue and are rejected. I do not find any issue left once the issue of the bills of lading is withdrawn. The issue of bailee and common carrier are interwoven and inseparable from the issue of the bills of lading.

But even if it can be held that the issues of Bailee and common carrier are separable from that of the issues of bills of lading then there is no evidence that defendant owed any duty of care to the plaintiff. There is no evidence of any reward paid to the defendants for carrying the goods once evidence of the bills of lading is disregarded”.

These findings of the learned trial Judge are erroneous having regard to the evidence adduced. The appellant did not withdraw or abandon the Bills of Lading – Exhs. B1-B10 to buttress his claim in negligence, as he based his claim for damages on breach of contract as well as in negligence in tort resulting therefrom. In short, this is what Mr. Akali, learned counsel for the appellant said at the trial court:-

“The plaintiffs are claiming for breach of contract of carriage Exh. 1 to A10 as well as in negligence against the defendant as a bailee for reward. We are abandoning claim on the bills of lading that is for breach of contract. We only claim on negligence.”

(italics supplied for emphasis)

There is evidence in line with paragraphs 6 and 7 of the amended statement of claim that before the goods were released to the appellant by the respondent, the original bills of lading were endorsed to the appellant by the United Bank of Africa. Thus, enclothing him with both locus and capacity to sue the respondent. See: Exhibits B1 -B 10- the Original bills of lading is each endorsed with a stamp bearing the following:-

“Release for delivery

(10,000) Ten Thousand Bags

To: Broadline Enterprises Limited

B Date: 21/8/81 Sgd…………………

Lagos & Niger Shipping Agencies Ltd. Apapa.”

Each of Exhibits B1-B10 bears a stamped inscription:-

“Freight Prepaid” in the column marked:-

Freight details, charges, etc.”

Learned counsel for the respondent, Mr. Oduba, did not call evidence in support of the facts averred in the further amended statement of defence but rested his case on that of the plaintiff.

The appellant, through P.W.1 and P.W. 2 proved that the respondent short delivered the consignment of sugar to them by 3,434 bags. None of the witnesses were cross-examined by the respondent so their evidence stood unchallenged.

From the evidence, I hold the view that the respondent was a common carrier and bailee for reward. He is therefore liable in negligence resulting in the short delivery. See: Holts Transport Ltd. v. K. Chellarams & Sons (Nig.) Ltd. (1973) All NLR 165; Intercotra Ltd. v. Cooperative supply Association Ltd. (1969) 1 All NLR 112; Turner v. Stallibrass & Ors. (1898) 1 QBD 56 and Panalpina World Transport (Nigeria) Ltd. v. N. Wariboko (1975) All NLR 24.

The Court of Appeal was wrong in affirming the trial court’s judgment. The appeal succeeds and it is allowed. The two judgments of the lower courts are set aside. I abide by all the consequential orders made in the lead judgment including that of costs.

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Other Citation: (1995) LCN/2357(SC)