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,
PAGE 1
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:
- 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
PAGE 2
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
- 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.
- 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)
- Further in the alternative, Plaintiff’s claims against the Defendants in Bailment in respect of the 30,250 units of plaintiff’s consignment.
- 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
PAGE 3
Leave a Reply