The General Manager, Nigerian Railway V. The United Africa Co. Ltd. (1954)

LawGlobal Hub Judgment Report – West African Court of Appeal

Limitation of Actions—Railways Ordinance, section 40—Bailment for reward—Onus in claim for goods not delivered—When cause of action arises.

Held

Section 40 (1) of the Railways Ordinance provides that:—
“No action shall be brought against a railway administration unless the same be commenced within six months after the cause of action arose and section 40 (2) provides that:—

“No action shall be commenced against a railway administration until one month at least after written notice of intention to commence the same shall have been served upon the railway administration by the plaintiff or by his attorney or agent. In such notice the cause of action and details of claim shall be clearly and explicitly stated.”

Goods consigned to the Company were landed at a port and stored in the Railway warehouse; they were not delivered to the Company, and the Company sued; the defence of the Railway was that they had been stolen by persons unknown and the Railway was not Hable.

The Railway was paid storage dues and was thus a bailee for reward. The Company averred negligence and called evidence of it; the Railway called no evidence. The Railway relied on section 40 (1) of the Railways Ordinance, but lost and appealed. The time-bar is discussed in the judgment in respect of the various goods lost. The writ of summons was issued on 19th November, 1952.

A.—Re bags of sugar: The Company wrote on 17th December, 1951, saying the bags had not been delivered and adding that if they were not, their letter stood as their claim. The Railway wrote on 31st May, 1952, saying the bags could not be traced and repudiating liability. The Company argued that time ran from 31st May, 1952, the Railway that it ran from 17th December, 1951.

B.—Turban cloth. This was landed about 22nd April, 1952; the Company gave notice of claim on 31st July, 1952; the Railway refused it on 16th October, 1952.

C.—Umbrellas. The Company gave a notice of claim on 10th May, 1952; the Railway informed the Company on 23rd July, 1952, that the goods could not be traced.

D.—Singlets. The Company gave notice of claim on 24th July, 1952.

E.—Tobacco. The Company gave notice of claim on 1st May, 1952; the Railway repudiated liability on 29th May, 1952.

Held

(1) This being a contract of bailment for reward, it was for the Railway to prove that they had taken all reasonable precautions against loss and were not in default, but this onus the Railway had not discharged.

(2) As regards hmitation, the contract of bailment subsisted until the Railway informed the Company, or until the Company came to know, that the goods had disappeared, or until the Company made a formal demand (as distinct from an inquiry) and was informed that the goods could not be dehvered; and upon these principles being applied:—

A.—Although the Company made a claim in their letter of 17th December, 1951, the Company wrote under the impression that the sugar would be forthcoming and added the claim as a precaution for the purposes of section 40 (2) of the Ordinance; it was not until the Railway wrote on 31stMay, 1952, that the sugar could not be traced, that the Company knew it was lost; therefore time began to run as from this date, which was within six months of 19th November, 1952, the date on which the action was begun;

B.—As regards the turban cloth the Company gave notice of claim on 31st July, 1952, so the action was in time;

C.—As regards the umbrellas, the Company by their letter of 10th May, 1952, giving notice of claim treated the contract as having been broken by the Railway, and time began to run from that date; the action on this claim was time-barred;

D.—For the singlets the Company gave notice of claim on 24th July, 1952, so the action was in time;

E.—The Company’s notice of claim dated 1st May, 1952, for the tobacco made it clear that they had made a formal demand before that date; the action on this claim was therefore time-barred.

Appeal allowed in part; judgment varied.

(Footnote by the Editor. The judgment is for £686 19s. 8d., but the items decided in favour of the Company—sugar, turban cloth and singlets—amount to £434 12s. Od. only. The difference of £252 7s. 8d. is the value of the third item on p. 632—2 bales cotton—which, though not dealt with in the text of the reasons for the judgment as typed, was, it must be inferred, decided in favour of the Company. Jhe editor is informed by de Comarmond, Ag. C.J., Nigeria, as he was when he delivered the reasons for the judgment, that the bales of cotton were mentioned in Exhibit F together with the singlets and that the remarks concerning the singlets apply equally to the bales of cotton.)