Narumal & Sons Nigeria Ltd. V. Niger Benue Company Ltd. (1989)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C.

This suit which had a chequered history initially started in the Warri Judicial Division of the High Court of Bendel State as W/102/77. It was subsequently transferred to the Federal High Court, Lagos, on 20th April, 1978.

In the claim filed in the High Court, the plaintiffs (respondents herein) sued for N89,356.45 being total of charter fees owing by the defendants (appellants herein) in respect of tug and barges hired or let out by the plaintiffs to the defendants in 1976 at Warri. On the 14th November, 1978, the appellants (i.e. defendants) brought a counter-claim against the respondents (plaintiffs) in the following terms:

“The defendant (by counter-claim) in February, 1976 became liable to the plaintiff in the sum of N407,911.20 being damages suffered by the plaintiff when its merchandise conveyed for valuable consideration in defendant’s lighter NB6 from Warri to Lagos became soaked with sea water and got broken, lost and depreciated in value as a result of the said lighter springing a leak.”

Several pleadings were exchanged by the parties both as regards the main suit and as regards the counter-claim. At the time the suit came to trial, the pleadings were as follows:-

(i) Respondents’ further amended statement of claim dated 10th November, 1977, but filed on 28/7/82 (at pp.142-143 of the record);

(ii) Appellants’ further amended statement of defence and counterclaim dated 8th day of June, 1982 (pp. 137 – 141);

(iii) Respondents’ amended statement of defence to counter-claim dated 2nd day of March, 1981. (pp.90 – 95);

(iv) Appellants’ reply to amended statement of defence to counterclaim dated the 8th day of April, 1981 (pp.96 – 98);

(v) Respondents’ reply to the further amended statement of defence and counter-claim dated 16th day of July, 1982 (p.114).

At the trial before Anyaegbunam, C.J. (as he then was), the plaintiffs/respondents called six witnesses while the defendants/appellants called three. The learned trial C.J. at the end of the trial gave judgment to the respondents on their claim in the sum of N89,356.45. There was no appeal against this judgment.

He also gave judgment to the appellants herein on their counter-claim in the sum of N120,256.00. It is this judgment that has necessitated this appeal. The respondents first appealed to the Court of Appeal (Ademola, J.C.A., Nnaemeka-Agu, J.C.A. (as he then was) and Kolawole, J.C.A.) which on 22nd May, 1986 allowed it and dismissed the counter-claim. The appellants herein then appealed to this Court.

Both the learned Senior Advocate appearing for the appellants, Mr. Sogbesan, and learned counsel to the respondents, Mr. Oduba, filed very learned and instructive briefs which have been quite helpful. In his brief of argument, Mr. Sogbesan identified three issues for determination in this appeal. These were:

“(i) Whether the Court of Appeal can overturn the finding of the trial court from which there has been no appeal