Delmas & Ors V. Sunny Ositez International Limited (2019)

LAWGLOBAL HUB Lead Judgment Report

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.

The Respondent/Cross Appellant herein, a trading company, sometime in December 2007 placed an order for 1,400 cartons (70,000 pieces) of electrical goods (fan regulators) from its overseas supplier, SHENZHEN LIGHT INDUSTRY Ltd. in China. The goods were supplied on board the vessel “CMA CGM OUBANGUI”, which arrived at Berth 16 Apapa Sea Port on 22nd January, 2008. Unfortunately the consignment got damaged as a result of flooding during the voyage. The 1st respondent was the carrier of the goods on board the vessel, while the 2nd respondent was the owner/charterer/manager/operator of the vessel. Both respondents are shipping companies registered in France with offices worldwide, including Nigeria. The 3rd respondent is also a shipping company and at all times material to the transaction was the agent and/or Nigerian subsidiary of the 1st and 2nd respondents.

Cargo surveyors appointed by the vessel owners’ Protection and Indemnity (P & I) correspondent, wrote to the 2nd Appellant/Cross Respondent on 22nd January, 2008, the same day the vessel berthed,

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informing them of the flooding. Thereafter a joint inspection was carried out by the representatives of the Respondent and Petromarine Technical Services Ltd. and a record was made of the damaged items in the respondent’s containers. The inspection revealed that 605 cartons (30.250 pieces) of the consignment, made up of 358 cartons (SMC brand) and 247 cartons (SMT brand) of fan regulators were found to be damaged and unfit for their intended purpose. Despite repeated demands, the appellants failed to compensate the respondent for the loss.

Consequently suit No. FHC/L/CS/5547/2008 was instituted by the respondent on 11th December 2008 before the Federal High Court, Lagos. In paragraphs 13, 17, 18, 19 and 20 of its statement of claim, it was averred:

13. The plaintiff avers that it has suffered loss (complete damage) of its 605 cartons (being 30,250 units at 50 units per carton of fan regulators at the cost of USD2.28 per unit (cost for all USD68,970) plus pro-rated freight for the damaged quantity of USD2,500, bringing plaintiff’s total loss to USD71,470 at the exchange rate of N118,000 to One US Dollar, translating to actual Naira loss of

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N8,433,460.00 and bank interest charges, legal cost of recovery and loss of profit in the sum of N1,566,540 bringing Plaintiff’s total claim (special and general damages) to the sum of N10,000,000.00

17. Plaintiff avers that the loss it suffered was as a result of the breach of the contract of carriage and common law obligation by the 1st and 2nd Defendants in this transaction.

PARTICULARS OF BREACH OF CONTRACT

Facts of landing 30,250 units of Plaintiff’s consignment in damaged condition.

18. In the alternative, plaintiff claims against the Defendants in negligence for the loss suffered.

PARTICULARS OF NEGLIGENCE

Fact of landing 30,250 units of plaintiff’s consignment in damaged condition (complete loss)

19. Further in the alternative, Plaintiff’s claims against the Defendants in Bailment in respect of the 30,250 units of plaintiff’s consignment.
20. WHEREUPON, the plaintiff claims against the defendants, jointly and severally, as follows:

(a) Physical delivery of the 605 cartons (being 30,250 units at 50 units per carton) of fan regulators which the plaintiff lost as a result of the breach of contract and/or

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negligence by the Defendants.

(b) And/or in the alternative, the landing cost of the consignment and general damages as follows:

SPECIAL DAMAGES C & F N8,433,460.00

GENERAL DAMAGES 1,566,540. 00

TOTAL CLAIM N10,000.000.00.”

The parties exchanged pleadings and led evidence in support thereof through their respective witnesses. Documents were tendered and admitted in evidence without objection. At the conclusion of the trial and after careful consideration of the respective written addresses, the learned trial Judge dismissed the suit on the ground that it was statute-barred. He held that the Bill of Lading in issue (Exhibit E) was a “Combined Transport” Bill of Lading and that by clause V (1) and VI (9) on the reverse side of Exhibit E and the provisions of Section 18 (1) of the Admiralty Jurisdiction Act Cap. A5 LFN 2004 (hereinafter referred to as AJA), the suit ought to have been commenced within 9 months of the accrual of the cause of action. That the cause of action accrued in February 2008 when the container was unstuffed and that the filing of the suit on 11th December 2008 was outside the time prescribed.

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The significance of this finding is that in the case of a Port to Port Bill of Lading, a suit may be filed within 12 months of the accrual of the cause of action, in which case the respondent’s suit would have been filed within time.

The respondent was dissatisfied with the decision and appealed to the lower Court. On 18/7/2013, the lower Court, in a considered judgment, allowed the appeal. The Court held that the Bill of Lading was not a Combined Transport Bill of Lading and therefore the Provisions of Clause VI (9) and Section 18 (1) of the AJA were not applicable. In dismissing the appeal, the Court made an order that the suit be remitted to the Chief Judge of the Federal High Court for assignment to another Judge other than Olatoregun-Isola, J. for trial on the merits.

The appellants are dissatisfied with the entire decision and have appealed to this Court vide their notice of appeal deemed filed on 28/1/2019 at pages 143-145 of the record, containing 4 grounds of appeal.

The respondent is also dissatisfied with the part of the decision of the lower Court remitting the case to the trial Court for trial de novo. Its notice of cross-appeal dated

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8/10/2013 at pages 146-148 of the record contains 2 grounds of appeal.

At the hearing of the appeal on 28/1/2019, L.N. NYLANDER ESQ., for the Appellants/Cross Respondents, adopted and relied on the Appellants’ brief filed on 14/10/2015 but deemed filed on 14/6/2017 and their Reply/Cross Respondent’s brief filed on 26/9/2017 in urging the Court to dismiss the appeal and allow the cross appeal.

MAIN APPEAL

For the appellants, two issues were formulated for the determination of the appeal as follows:

1. Whether the Bill of Lading is a Combined Transport Bill of Lading or a Port to Port Bill of Lading.
2. Whether there was an error in the Bill of Lading.

Learned counsel for the respondent adopted the issues and argued them together. I shall also consider the two issues together.

It is contended on behalf of the appellant that a Bill of Lading contains the terms of the contract between the parties and is therefore binding on them. He referred to Nika Fishing Co. Ltd. Vs Lavina Corporation (2008) 16 NWLR (Pt. 1114) 509 SC. He referred to the last line on the face of Exhibit E wherein it is provided that whenever there is an asterisk

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on the page, whatever is written there is applicable only when the document is used as a Combined Transport Bill of Lading. He submitted that there are two places where an asterisk appears on Exhibit E – the place of receipt of the goods and the place of delivery of the goods. He submitted that if the Bill of Lading is a Port to Port Bill of Lading, it would not specify the place of delivery of the goods. He submitted that Exhibit E specifies Apapa Port as the Port of Discharge of the goods and goes further to specify a place of delivery i.e. Apapa, Lagos.

He submitted that contrary to the finding of the lower Court, the terms of Exhibit E are clear and succinct and contended that the Court was not correct when it held that the Bill of Lading must state the mode of pre-carriage or any other mode of carriage before the carriage by sea and must also provide a specific address for final delivery. He submitted that the parties, when entering into the contract were well aware of the implication of an asterisk on the Bill of Lading and that if they did not want it to apply, they would not have written anything next to the asterisk.

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He contended that it is not modern shipping practice for a Bill of Lading to show a specific address for delivery, as held by the lower Court. He submitted that what is required is an address that both parties, at the time of entering into the contract, identify and agree with as a place of delivery, no matter how vague.

He submitted that not all combined transport contracts are door to door and that the fact that the appellant’s witness mistakenly said, under cross- examination that the Bill of Lading is a Port to Port Bill of Lading does not make Exhibit E to be so. He submitted that it is common practice that the parties, in accepting the Bill of Lading, agree that “the merchant agrees to be bound by all stipulations, exceptions, terms and conditions, on the face and back hereof, whether written or typed, stamped or printed, as fully as if signed by the merchant, any local custom or privilege to the contrary notwithstanding and agrees that all agreements or freight engagements for and in connection with the carriage of goods are superseded by the Bill of Lading.”

He submitted that the viva voce evidence of a witness cannot change the terms of an agreement in

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writing, executed by the parties when their minds were ad idem. He referred to Section 76 of the Evidence Act, 2004 now Section 125 of the Evidence Act, 2011.

Learned counsel submitted that, contrary to the finding of the lower Court, there was no error or ambiguity in Exhibit E that warranted the Court relying on Exhibit D to clear same. He submitted that Exhibit E is the contract between the parties and the lower Court ought to have restricted itself to same. That FCL – FCL in Exhibit E is an “incoterm” which denotes the receipt of the goods before shipment at the Port or Container Yard (CY). He submitted that if the goods were picked up according to Exhibit E, it means there was a pre-carriage by sea journey from the place of pick up to the Port thus signifying Combined Transport.

In response, learned counsel for the respondent/Cross appellant, relying on a textbook – Maritime Laws by Christopher Hill, 5th edition (1988) at page 192, submitted that a Bill of Lading serves three purposes: (i) it is a document of title with negotiable characteristics; (ii) it is a receipt for goods shipped on board a named carrying vessel; and (iii)

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it can serve as a contract document. He stated that where a Bill of Lading refers to another contract document, such as a charterparty, it serves as evidence of contract. Relying on Nika Fishing Co. Ltd. Vs Lavina Corporation (supra), he submitted that when the Bill of Lading serves as a contract document it contains the contractual terms between the parties and is therefore binding on them.

He noted that while the appellants contend that the contract between the parties was a Combined Transport shipping contact, in which case the consignee could only sue the transporter within 9 months after the delivery of the goods or the date when the goods should have been delivered, it is the respondent’s contention that it was a Port to Port shipment in which case the time within which an action may be brought is 12 months.

He submitted that a Combined Transport Bill of Lading covers transport from door to door by several modes of transport. It must show on its face:

(i) the place of receipt of the goods other than a sea port;

(ii) the mode of pre-carriage;

(iii) whether any other mode of carriage took place in the country of export before the

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carriage by sea;

(iv) a specific address as the place of final delivery of the goods other than a sea port in the country of import;

(v) evidence of the mode of carriage of the goods to the place of final delivery in the country of import.

He submitted that Combined Transport is the combination of at least two types of transport in a uniform transport chain that does not involve the changing of the transport units. He referred to two textbooks in support of these submissions: The Shipmaster’s Business Companion, 4th edition (2004) (a publication of the Nautical Institute) page 534 paragraph FO7b.8 titled Types of Bill of Lading and Shipping Law, 2nd edition, 2001 by Simeon Baughen at page 145.

He submitted that it was the respondent’s case at the lower Court that Exhibit E is pliable in that it could be used either as a Port to Port Bill of Lading or alternatively as a Combined Transport Bill of Lading. He referred to Clause IV on the reverse side of Exhibit E titled “Carriers Responsibility: Port to Port Shipment” and Clause V titled “Carriers Responsibility: Combined Transport.” He submitted that whichever of the two alternatives Exhibit

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E is used for is a question of fact.

He submitted that regard must be had to the place of loading of the respondent’s containers and the place of discharge as well as the place of final delivery and who delivered them. He submitted that in order to make the determination, the Court would need to look at Exhibits E, F, B, & D. Exhibit D is the supplier’s invoice, which he contends is a constituent part of the agreement between the respondent and its suppliers to deliver the goods to the port of loading Chiwan Port. In paragraph 4.6.2. of his brief he set out the facts, which support the respondent’s contention that it was a port to port shipment. He submitted that there was no evidence led by the appellants/cross respondents to substantiate the assertion that it was a combined transport shipment beyond the fact that there is an asterisk on Exhibit E. He noted that the appellants’ witness, under cross examination, admitted that it was a port to port shipment.

Learned counsel submitted that the two most distinguishing characteristics of Combined Transport Carriage as opposed to Port to Port carriage are: (1) that the former features at least

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two clearly stated and identifiable modes of transport including a sea leg, undertaken by the same transport directly or through his own agents; (2) the carrier must not only discharge the goods ex the carrying ship, it must deliver the goods to the cargo interest (importer/consignee) at a clearly stated address other than the quays, unlike in a Port to Port contract where the responsibility of the carrier ends with the discharge of the goods ex the carrying vessel unto the poor quays.

He submitted that from Exhibit E, it is evident that the appellants commenced the performance of the contract when they loaded the subject containers on board their vessel at Chiwan Port and completed their carriage contract when they discharged the subject container at the Port of discharge i.e. Apapa Port. He submitted that this signifies Port to Port carriage. He also observed that above the Port of Loading box in Exhibit E, is a box with spaces for “pre-carriage by…,” and “place of receipt…,” which have been left blank. He submitted that the spaces would have been filled if it was a Combined Transport contract. He submitted that the lower Court rightly held that by

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leaving the two spaces blank and repeating Apapa-Lagos Nigeria (the agreed country of destination/port city discharge) as the place of delivery, the appellants as issuers of Exhibit E, have created ambiguity in the entries therein and that the learned trial Judge ought to have applied the contra proferentem rule of construction in construing the said entries against the appellants.

Alternatively, he submitted that the lower Court was right when it held that there was an obvious error in Exhibit E wherein the place of delivery is shown to be the same as the country of destination, the relevant Port city and the place of discharge. He submitted that in a Combined Transport contract the Bill of Lading would show not only the country of destination, the relevant port city and the name of the port of discharge, it would also show the place of delivery of the consignment, which would not be a port unless the consignment itself is a ship.

Further, in the alternative, he urged the Court to discountenance any argument of the appellant making Incoterms (three-letter standard trade terms published by the International Chamber of Commerce (ICC) Paris commonly

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used in International and domestic trade contracts) a part of the transportation contract between the parties, as there is no Incoterm in Exhibit E. He submitted that FCL-FCL, which is an abbreviation for full container load is not an Incoterm.

He submitted that Exhibits D, F, and B referred to by the lower Court are relevant facts within Section 7 (a) (b) and (d) and 9 (b) of the Evidence Act, 2011 and the Court was right to have held them to be relevant in construing Exhibit E.

In reply, learned counsel for the appellants submitted that the contra preferentum rule is inapplicable to the interpretation of Exhibit E. He submitted that it would be fairer to use the “contraction ut res magis releat quam pereat” rule to give effect to the combined transport intention of Exhibit E rather than having it fail. He maintained that the Incoterms FCL-FCL applied in this case. He also asserted that there were two modes of transportation used in this case as it is clear that the goods were received before being transported to the Port for shipment.

In order to have a clear grasp of the issues raised in this appeal, it is necessary to define some of the

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terms used, which are peculiar to shipping contracts:

1. Bill of Lading is defined in Black’s Law Dictionary 9th edition at page 176 as follows:

A document acknowledging the receipt of goods by a carrier or by the shipper’s agent and the contract for the transportation of those goods; a document that indicates the receipt of the goods for shipment and that is issued by a person engaged in the business of transporting or forwarding goods.

“A bill of lading may be regarded in three several aspects (1) It is a receipt given by the master of a ship acknowledging that the goods specified in the bill have been put on board; (2) It is the document (that) contains the terms of the contract for the carriage of the goods agreed upon between the shipper of the goods and the shipowner (whose agent the master of the ship is); and (3) it is a ‘document of title’ to the goods, of which it is the symbol. It is by means of this document of title that the goods themselves may be dealt with by the owner of them while they are still on board ship and upon the high seas.” Williams R. Anson, Principles of the Law of Contract 380 (Arthur L. Corbin ed., 3d Am. Ed.

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1919).”

2. Combined Transport Bill of Lading: Bill of Lading issued for containerized door to door shipments that have to use different ships and/or different means of transportation (aircraft, railcars, ships, trucks, etc.) from origin to destination.

Unlike the case of through Bill of Lading, the carrier takes on full liability under a contract of carriage for the entire journey and over all modes of transportation. Also called combined bill of lading, combined transport Bill of Lading, intermodal Bill of Lading or multimodal Bill of Lading. (www.businessdictionary.com).

3. Port to Port Shipment defines a type of shipment which commences at the Port of Loading and ends at the Port of Discharge Port to Port shipment can be defined as a single mode sea freight transportation, which is started at the port of loading and ended at the port of discharge. (www.advancedontrade.com).

See also: Shipping Law 2nd Edition 2001 relied on by learned counsel for the respondent.

Thus, as held by this Court in: Nika Fishing Co. Ltd. Vs Lavina Corpn. (2008) 16 NWLR (Pt.1114) 509, a bill of lading contains the contractual terms between the

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parties and is binding on them and where there is no ambiguity in the bill of lading, effect must be given to the plain, clear and obvious meaning of the words used. It was also held in that case that parties to an agreement retain the commercial freedom to determine their own terms and no other person, not even the Court can determine the terms of the contract between them. The duty of the Court is to interpret the contract and give effect to the wishes of the parties as expressed in the contract document.

Now, Exhibit E is a Bill of Lading. It represents the agreement between the parties in this case. Both parties agree that it is pliable. What this means, as clearly stated at the top of the document, is that it can be used for Port to Port shipment or Combined Transport Shipment. How do the parties agree on which type of shipment the bill of lading represents? There is an asterisk in Exhibit E in the column for delivery of the goods. At the bottom of Exhibit E it is stated that the asterisk is applicable “when the document is used as a Combined Transport Bill of Lading.” In further confirmation of the fact that the document is pliable, the reverse side

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of Exhibit E has provisions for each type of shipment. Clause IV sets out the responsibilities of the carrier in a Port to Port shipment while Clause V sets out the responsibilities of the carrier in a Combined Transport shipment.

At first glance, it appears straightforward: once an asterisk appears on the bill of lading, it is a Combined Transport Shipment and where there is no asterisk, it is a Port to Port shipment. It is however, not as simple as it appears. As rightly submitted by learned counsel for the respondent, whether Exhibit E was used as a Combined Transport bill of Lading or a Port to Port Bill of Lading, is a matter of law and fact. That merely placing an asterisk in the relevant column without further particulars would not make the document a Combined Transport Bill of Lading.

This position is borne out of the peculiar characteristics of the two modes of shipment. As explained above, in port to port shipment, only one mode of transport is involved. The carrier transports the goods from the loading port to the port of discharge. In combined transport shipment, it involves different modes of transportation and the carrier takes full

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responsibility for the carriage of the goods throughout the different stages of their journey and different modes of transport until finally delivered to the consignee at a specified address.

It is relevant to restate here, that the reason why it is necessary to determine the mode of shipment is that it will determine whether the suit filed after 9 months but within 12 months of the unstuffing of the respondent’s containers, was time barred or not. It was the appellant’s contention at the trial Court that by virtue of Clause Vi (9) of Exhibit E and Section 18 (1) of the AJA, the suit was time barred for not being filed within 9 months of the accrual of the cause of action.

Clause VI (9) provides:

“Where the carriage called for by this Bill of Lading is a combined transport shipment and when the provisions of the international convention or of the National Law applicable to the non maritime part of the carriage by virtue of the Clause, Law and Jurisdiction of the face hereby do not determine a time bar, the carrier should be discharged of all liability unless suit is brought and notice thereof given to the carrier within 9 months after the

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delivery of the goods or the date when the goods should have been delivered.”

Section 18 (1) of the AJA provides:

“18 (1) A proceeding may be brought under this Act on a maritime claim or on a claim on a maritime lien or other charge, at any time before the end of

(a) the limitation period that would have been applicable to the claim if a proceeding on the claim had been brought otherwise than under this Act; or

(b) if no proceeding on the claim could have been so brought a period of 3 years after the cause of action arose.

(2) The provisions of Subsection (1) of this section shall not apply if a limitation period is fixed in relation to the claim by any enactment or law.”

The bone of contention here is that on the face of Exhibit E, the place of receipt of the goods and the place of delivery both have asterisks and that if it was a port to port bill of lading, as contended by the respondent, it would not specify the place of delivery of the goods. Interestingly, notwithstanding the asterisk, the place of receipt of the goods and the place of delivery of the goods is the same, Apapa Lagos Nigeria. In other words, no specific

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address for delivery was stated outside Apapa Port.

The learned trial Judge, at page 64 of the record held:

“The document specified both the place of discharge and the place of delivery. In the column for place of delivery is an asterisk. At the bottom of Exhibit E is explained thus:

“Applicable when this document is used as a combined transport Bill of Lading,”

It is therefore immaterial that the column for place of discharge reads Apapa Lagos Nigeria. It is the duty and responsibility of the Plaintiff to show that discharge and delivery means one and the same as the Court cannot make agreements for parties or change agreements made by parties. Parties are bound by the conditions and terms in a contract they freely entered into.

… I have no doubt that within the contemplation of Exhibit E, this is a combined Bill of Lading or Transport shipment.”

In light of the definitions referred to earlier, is this a correct interpretation of Exhibit E? The lower Court did not agree with the interpretation. It held, per Iyizoba, JCA, at pages 127 – 128 of the record:

“There was an asterisk in the column for delivery of the goods

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and the explanation at the bottom of the bill of lading is ‘Applicable when this document is used as a Combined Transport Bill of Lading.’ That was the only ground on which the learned trial Judge dubbed the contract between the parties a combined transport shipping contract. I agree with learned counsel for the appellant that the Bill of Lading in this case, Exhibit E, is pliable. It could be used either as a Port to Port Bill of Lading or alternatively as a Combined Transport Bill of Lading. .., Counsel is right that whichever of the two alternatives Exhibit E is used for, is a question of law and fact and not merely the entry of Apapa Lagos as the place of delivery, which entry is exactly the same as the one for Port of discharge and where there are no further particulars.

As stated by learned counsel for the appellant, when it is a Combined transport Shipping contract, meaning the carriage of the goods from door to door, the Bill of Lading must show on its face mode of pre-carriage. It must also be shown on the face of the bill if any other mode of carriage took place in the country of export, before the carriage by seas.

The Bill of Lading must

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show a specific address as place of final delivery of the goods other than a sea port in the country of import. In addition there must be evidence available to a Court seised with interpreting the status of the Bill of Lading contract, the mode of carriage of the goods to the place of final delivery by the carrier in the country of import. None of these were shown in the bill of lading. The contract was simply from the port of shipment to the port of discharge. The respondents’ witness in cross-examination confirmed that the Bill of Lading is a Port to Port bill. Learned counsel for the respondents claimed the statement was a mistake. But it is in consonance with all the evidence adduced and the contents of the Bill itself.

The Courts are no robots. The learned trial Judge was in grave error to have reached the conclusion that the bill of lading was a combined Transport Bill of Lading simply because of the entry of Apapa Lagos as the place of delivery of the goods. Where in Apapa, Lagos are the goods supposed to be delivered? Even the incompleteness of the address of delivery is sufficient to raise doubts to any claim that the contract is a combined

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transport contract.”

I have laboured to reproduce the findings of the Court below in extenso because I find the reasoning to be sound and unassailable. The only basis for the finding of the learned trial Judge that Exhibit E is a combined transport bill of lading is the asterisk that appears thereon. However, with due respect to His Lordship, it is quite clear on the face of Exhibit E, that no other form of carriage either pre- or post-shipment is indicated. The place of delivery and the place of discharge are the same: Apapa Lagos Nigeria. I agree with the Court below that if it were a combined transport bill of lading, a specific address would have been given outside Apapa Port. The onus was on the appellants who asserted that it was a combined transport shipment to satisfy the Court that there was a pre-carriage by sea journey from the place of pick up to the port, undertaken by the appellants, as part of the contract. See Section 131 of the Evidence Act, 2011. This is particularly in view of the fact that the boxes for “pre- carriage” and “place of delivery” were left blank. This is not a case of the Court making a contract for the parties.

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It is also very significant that the appellants’ witness admitted under cross-examination that it was a Port to Port shipment. I agree with the lower Court that the admission was in consonance with what was on the face of Exhibit E. At the very least, there is an ambiguity in Exhibit E and the lower Court was right to have used the contra proferentem rule of construction to construe the document against the appellants.

Another contention of the appellants is that the Court ought not to have looked at any other document apart from Exhibit E in construing the contract between the parties. In dealing with this issue, it is necessary to refer to Sections 7 and 9 of the Evidence Act, which provide:

“7 Facts –

(a) necessary to explain or introduce a fact in issue or relevant facts;

(b) which support or rebut an inference suggested by a fact in issue or relevant fact;

(c) which establish the identity of anything or person whose identity is relevant; or

(d) which fix the time or place at which any fact in issue or relevant fact happened; or

(e) which show the relation of parties by whom any such fact was transacted, are relevant in so far

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as they are necessary for that purpose.

9. Facts, not otherwise relevant are relevant if –

(a) they are inconsistent with any fact or issue or relevant fact; and

(b) by themselves or in connection with other facts, they make the existence or non-existence of any fact in issue or relevant fact probable or improbable.”

Whether or not a fact is relevant would be determined by the surrounding circumstances. See: Okonji (alias Warder & Ors. Vs Njokanma & Ors. (1999) 12 SC (Pt.II) 150; Akingbade Vs Elemosho (1964) LPELR-25225 (SC) @ 5 – 6 E – D. Again, shall quote extensively from the judgment of the lower Court at page 134 – 135 of the record:

“The appellant referred the learned trial Judge to the invoice Exhibit D, which was an agreement between the appellant and his supplier to deliver the goods to the port of loading CHIWAN PORT, which is the place of reference in the agreement between the appellant and the respondents. It is a contemporaneous transaction admissible under Section 7 of the Evidence Act. The learned trial Judge would not consider it. He dismissed it on the ground that the exhibit was not issued

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by the respondent.

The appellant adduced credible evidence that his two containers were loaded on board the respondent’s ship from Chiwan Port and discharged on 21/1/08 at Apapa Lagos Nigeria Port, Berth 16, Exhibit F. The appellant also adduced evidence that delivery was taken from the Apapa port by his clearing agent as shown in Exhibits F and B, completing the sequence of Port to Port Shipping Agreement.

These pieces of evidence were not considered by the trial Judge. Even the sole witness called by the respondent confirmed in cross-examination that it was a Port to Port Shipping Agreement, The learned trial Judge ignored this in the evaluation of the evidence, choosing to stick to the very obvious error in the bill of laden (sic) Exhibit E, by which he came to the erroneous conclusion that the contract is one of combined transport shipment when there was absolutely nothing in the face of the bill to support such contract – no details of where the goods were picked up by the respondent, other than from Chiwan Port; no details of where the respondent was to deliver the goods, other than the Port in Nigeria – all pointing to Port to Port shipping

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contract. To make matters worse, the learned trial Judge from the evidence knew that the respondent was bent on dubbing the contract one of Combined Transport Shipment in order to rake advantage of Clause VI (9) of Exhibit E (bill of lading) on time bar.

The learned trial Judge, on this score, ought to have applied the contra proferentem rule of construction as urged by the appellant and upheld in the case of Simmonds Vs Cockell (supra) [(1920) KB 843 at 845]. The entries in the Bill of Laden (sic) (Exhibit E), being ambiguous, ought to be construed against the respondent who made the entries for their protection.”

I cannot fault the above findings. Exhibits B, D and F referred to by the lower Court were relevant facts by virtue of Sections 7 (a) & (b) and 9 (b) of the Evidence Act. The lower Court was in order to have relied on them in construing Exhibit E. I agree with the lower Court that from the facts and evidence in this case, Exhibit E is a Port to Port Bill of Lading and not a Combined Transport Bill of Lading. In the circumstances, the lower Court was right when it held that the 9-month limitation period provided for in Clause VI (9) of

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Exhibit E and Section 18 (1) of the AJA, did not apply in this case. The respondent’s suit, filed on 11/12/2008, after 9 months but within 12 months of the accrual of the cause of action was competent.

I accordingly resolve the two issues in this appeal against the appellant. The appeal lacks merit and is hereby dismissed.

CROSS-APPEAL

The main contention of learned counsel for the cross appellant is that the lower Court erred in remitting the case to the trial Court to be heard de novo before a different Judge other than Olatoregun-Isola, J.

Learned counsel submitted that the Court ought to have exercised its powers under Section 15 of the Court of Appeal Act to rehear the case on the evidence on record and to make any order which the trial Court could have made. He referred to the conditions for invoking the section as set out in Inakoju Vs Adeleke (2007) ALL FWLR (Pt.353) 1 @ 206 – 207 G-A and submitted that all the conditions exist in this case. He submitted that Section 22 of the Supreme Court Act is in pari materia with Section 15 of the Court of Appeal Act and urged this Court to exercise its powers thereunder to do substantial

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justice in this case. He also referred to: Peter Obi Vs INEC & Ors. (2007) ALL FWLR (Pt.378) 1116 @ 1168 D – H & 1169 A – H; Amaechi Vs INEC (2008) ALL FWLR (Pt.407) 1 @ 119 D – F.

He contended that the main issue in controversy between the parties was whether the bill of lading was a combined transport bill of lading or a port to port bill of lading and that the lower Court having resolved the issue in favour of the cross-appellant, ought to have proceeded to enter judgment in its favour.

Learned counsel for the cross respondent agrees with learned counsel for the cross appellant that all the materials necessary for the lower Court to have invoked its powers under Section 15 of the Court of Appeal Act were present in this case. He is however of the view that invoking Section 15 of the Court of Appeal Act, or Section 22 of the Supreme Court Act, does not mean judgment should be entered for the cross appellant. Although he maintains that Exhibit E was a combined transport bill of lading, he contends that the responsibility of compensating the cross appellant is not that of the cross respondents but that of the ship owners

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who had admitted liability and assumed responsibility through their P & I representatives, Petromarine Technical Services.

Section 15 of the Court of Appeal Act, which is in pari materia with Section 22 of the Supreme Court Act, provides:

“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before the final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorised to make or grant and may direct any necessary Inquiries or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall

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deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.”

It is pertinent to note that by the use of the word “may” in Section 15 of the Court of Appeal Act, as with Section 22 of the Supreme Court Act, the Court is given the discretion to decide which course of action to take having regard to the circumstances of the case. The Court may adopt the option of re-hearing the case as if it were the Court of first instance, it may also remit the case to the trial Court for re-hearing. The issue to be determined is whether the order remitting this case to the trial Court for re-hearing was a wrong exercise of that discretion. I think not.

As rightly stated by both learned counsel, the requirements for invoking Section 15 of the Court of Appeal Act are:

a. The trial Court must have jurisdiction to hear and adjudicate on the case;

b. The real issue raised by the appellant’s claim must be capable of being distilled from the grounds of appeal;

c. All necessary materials for the

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consideration of the Court must be available for adjudication;

d. The need for expeditious disposal of the case to meet the ends of justice must be apparent. See: Odedo Vs INEC (2008) 17 NWLR (Pt.117) 554 @ 536; Inakoju Vs Adeleke (2007) 1 SC (Pt.1); Adama & Anor. Vs Maigari & Anor. (2018) 4 SC (Pt.1) 45 @ 78 – 79; Obi Vs INEC(2007) 11 NWLR (Pt.1046) 560 @ 639 – 641.

Requirement (b) above is that the real issue raised by the claim of the appellant at the lower Court or trial Court must be discernible from the grounds of appeal. The grounds of appeal before the lower Court all challenged the finding of the trial Court that Exhibit E was a combined transport bill of lading and therefore the suit was time barred. The issue in controversy at the trial Court was whether the appellants herein, as defendants before that Court, were liable in special and general damages for the damage to the cross-appellant’s goods on board their vessel. The grounds of appeal before the lower Court therefore, did not touch on the substance of the claim.

See: Adama & Anor. Vs Maigari & Anor. (supra). Having held that the cross-appellant’s suit

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was not time-barred and was competently instituted, it is appropriate that the suit be tried on the merits before another Judge. I am not persuaded that the lower Court wrongly exercised its discretion in remitting the suit to the trial Court in this case. There is no basis for interference with the order.

In conclusion, I hold that the cross-appeal lacks merit. It is hereby dismissed. The parties shall bear their respective costs in the main appeal and in the cross appeal.

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SC.157/2014