Umarco (Nigeria) Plc V. Jofabris and Associates Ltd. & Anor (2003)

LawGlobal-Hub Lead Judgment Report

JAMES OGENYI OGEBE, J.C.A. 

The 1st respondent sued the appellant and the 2nd respondent in the Federal High Court, Lagos claiming a total sum of N2,541,200.00 (Two million five hundred and forty-one thousand two hundred naira) being special and general damages for breach of contract of carriage of goods covered by bill of lading No. 101.

The 1st respondent filed a statement of claim on the 9th of April, 1997. The appellant did not file a statement of defence but chose to file a motion on the 6th of November, 1997 requesting the trial court to dismiss the suit on the ground that it was statute-barred.

The trial court heard argument and dismissed the motion. It is against that ruling that the appellant has appealed to this court.

The learned counsel of the appellant filed a brief of argument and formulated two issues for determination as follows:

1.Is the 1st respondent (plaintiff) bound by the terms and conditions of the bill of lading contract entered into by the 1st respondent and the appellant’s principals?

2.Whether in view of the provisions of the terms and conditions of the bill of lading contract, this suit is statute-barred?

He also filed a reply brief in reply to the 1st respondent’s brief and a reply brief in respect of the 2nd respondent’s brief.

The 1st respondent filed a brief and adopted the issues formulated by the appellant. The 2nd respondent also filed a brief and formulated one issue for determination as follows:

“Whether learned trial Judge rightly or wrongly found that the 1st respondent’s suit against the appellant was not time barred.”

The facts of this case are relatively simple. The appellant brought some goods by sea to the 1st respondent. The goods were containers of frozen fish. They were discharged to the 2nd respondent on the 11th of October, 1995 from the MVCNBT Europe.

The 1st respondent collected the goods on the 24th of October, 1995 and found that one of the containers was spoilt. It complained both to the appellant and the 2nd respondent about the damage and when nothing was done it brought an action on the 16th of October, 1996 claiming damages as stated earlier in this judgment.

The dispute between the parties is whether or not the time for institution of the action began to run from the 11th of October, 1995 or the 24th of October, 1995.

The trial court held that time began to run from the 25th of October, 1995 and therefore the action which was filed on the 16th of October, 1996 was within the time of the one year allowed by law.

I am of the view that there was only one issue for determination in this appeal and that is the issue formulated by the 2nd respondent which tallies with the appellant’s second issue namely: whether the action in the lower court was statute-barred.

The main argument of the appellant is that the 1st respondent is bound by the terms of contract contained in the bill of lading particularly Clause 17(7) which provides thus:

“with regard to this Clause 17, the discharge of the goods whether into the hands of any customs, port on other authority or in compliance with Clause 17(2) shall always be deemed to be the delivery of the goods to the merchant, in accordance with the Hague rules. The liability of the carrier shall cease upon discharge of the goods notwithstanding any charges, dues or other expenses that may be or become payable.”

The learned counsel submitted that if the trial Judge had adverted his mind to Clause 17(2), (6) and (7) of the bill of lading he would have come to the conclusion that the goods were delivered on the 11th of October and time for suing would begin to run from that date. He also said that it was not for the trial Judge to make a contract for the parties.

He referred to the cases of Abdullahi v. Waje Community Bank (2000) 7 NWLR (Pt. 663) 9 and Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) 492.

The learned counsel for the 1st respondent submitted that the goods were not delivered until the 24th of October, 1995 and therefore the action which was brought on the 6th of October, 1996 was within time.

He said that the provision of the Carriage of Goods by Sea Act, Cap. 44 of the Laws of Federation of Nigeria, 1990 and the rules contained in the schedule thereof make the time for action to run from the date of the delivery of the goods or the date when the goods would have been delivered and not the date of the arrival of the ship carrying the goods.

The learned counsel for the 2nd respondent submitted that the earliest time to compute the 1st respondent’s cause of action was when it had the opportunity to examine the consignment and ascertain the level of damage. This would be after the 24th of October, 1995 when the goods were released to the 1st respondent.

The learned counsel further argued that clause 17 of exhibit M1 the bill of lading envisages actual and assumed delivery. He drew a distinction between the discharge of consignment and delivery of consignment. He said that there must be discharge of consignment from the vessel before there is a subsequent delivery.

It appears to me that there is much confusion in the lower court as to which law was applicable in the matter before it. Both sides did not help matters as they added to the confusion. For example, the appellant told the court that Article 3 rule 6 of the Carriage of Goods by Sea Act, Cap. 44 of the Laws of Federation of Nigeria, 1990 was applicable law in respect of the time of limitation of action. The true position of the law is that the Carriage of Goods by Sea Act by section 2 thereof the rules contained in the schedule have effect in relation to and in connection with the carriage of goods by sea in ships carrying goods from any port in Nigeria to any other port whether in Nigeria or outside Nigeria. The rules therefore do not apply to goods brought to Nigeria from outside as the facts of this case disclose.

In the case of Horizon Fibres Nigeria Plc. v. M. V. Baco Liner 1 (2002) 8 NWLR (Pt. 769) 466, the appellant sued the respondents at the Federal High Court, Lagos claiming damages from a contract of carriage by sea. The 1st to 3rd respondents filed a motion to dismiss the claim on a number of grounds including a ground that it was statute-barred.

The respondents relied on a bill of lading in support of the motion to dismiss the claim.

The trial court dismissed the claim on the ground that it was statute-barred. The appellant appealed to the Court of Appeal which held that in demurrer proceeding, only the plaintiff’s statement of claim can be looked at to determine whether or not the action is statute-barred and not any document outside the statement of claim.

The court was of the view that the bill of lading which was annexed to the motion paper could not be used to hold that the action was statute-barred. The facts of the present case are identical and I have no cause whatsoever to depart from the earlier judgment of this court. I am in fact bound by it.

The 1st respondent’s statement of claim on its face does not disclose that the action was statute-barred and therefore the bill of lading relied on by the appellant in moving the court to hold that the action was statute-bar could not be so used at that stage of the proceedings.

It would have been far neater for the appellant to raise the issue of statute-barred in a statement of defence to afford the court of hearing evidence and assessing all the facts of the case before arriving at a just decision.

For all I have said in this judgment, I am satisfied that the trial court arrived at the correct decision but for the wrong reason. I therefore dismiss the appeal on the ground that there was nothing in the 1st respondent’s statement of claim to establish that the action was statute-barred. I hold that the appellant’s motion to dismiss the action was rightly dismissed. The appellant shall pay costs of N3,000.00 to the 1st respondent and N3,000.00 to the 2nd respondent.

Other Citations: (2003)LCN/1432(CA)