Umarco Nigeria Plc V. Ofeelly Agro-farms & Equipment Company Limited & Anor (2016)
LawGlobal-Hub Lead Judgment Report
CHINWE EUGENIA IYIZOBA, J.C.A.
This is an appeal against the judgment of Abutu J of the Federal High Court, Lagos Division delivered on the 1st day of March 2005.
By a civil summons dated 28th October, 1997, the 1st Respondent Ofeelly Agro-Farms & Equipment Co Ltd commenced an action against the 2nd Respondent, Nedlloyd Lijnen B.V. Rotterdam (owners of the four mentioned vessels) and the Appellant Umarco Nigeria Plc, jointly and severally claiming, inter alia, the sum of US$558,000.00 (Five Hundred and Fifty Eight Thousand United States Dollars) or its naira equivalent in the sum of N49,455,500.00 (Forty Nine Million Four Hundred and Fifty Five Thousand Five Hundred Naira) plus interest, being special and general damages for breach of contract and/or tort of bailment as common carriers and bailees for reward of the 1st Respondent’s 1 x 40 foot container said to contain Automobile packages which the Defendants failed or neglected to deliver or return to the Plaintiff on demand, in consequence whereof the Plaintiff lost their value and suffered enormous losses and damages.
Subsequently,
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by an amended statement of claim dated 31/11/04 and filed same day at Pages 597 – 607 of the Record, the Plaintiff claimed against the Defendants, jointly and severally, inter alia, the sum of US$1,796,087.90 (One Million, seven Hundred and ninety-six Thousand, eighty-seven US Dollars and ninety Cents) or its Naira equivalent of N170,628,350 (One Hundred and Seventy Million Six Hundred and Twenty Eight Thousand Three Hundred and Fifty Naira) plus interest being special and general damages for breaches of bailment, contract, detinue or conversion and negligence as common carriers and bailee for reward of the 1st Respondent’s 1 x 40 feet container said to contain automobile spare parts.
Learned counsel for the Plaintiff stated that the main plank of the 1st Respondent’s cause of action was that a container load of automobile spare parts valued at US$653,420 was delivered to the Defendants in good order and condition for safe keeping and carriage from Buenos Aires, Argentina to Apapa, Lagos. However, the goods were not delivered at the expected time due to the negligence of the Defendants and the Plaintiff suffered not only the value of the lost goods
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but also the potential profit it would have derived had the goods been safely carried to Lagos. Learned counsel alleged that the Plaintiff also incurred significant costs in investigating the whereabouts of the goods.
The Defendants by their further amended statement of defense dated 22/03/04 and filed same date at pages 536 – 540 of the Record denied any negligence, actual fault or privity and averred that the carrying vessel Nedlloyd Recife, encountered heavy weather along the coast of Brazil and the vessel sank with all her cargo off Sao Francisco Do Sul on 2nd March 1996. It was their further defence that the accident resulted from perils, dangers and accident of the sea or act of God. The Defendants also challenged the value of the goods as alleged by the Plaintiff as US$36,000.00 (Thirty Six Thousand United States Dollars and not US$653,420.00 (Six Hundred and Fifty Three Thousand four hundred and twenty United States Dollars). The parties at various times amended their pleadings. The Plaintiff during hearing called three witnesses and the Defendants called one witness. The lower Court in its judgment found both defendants liable in negligence
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and breach of bailment.
Dissatisfied with the judgment, the Defendants filed a Notice of Appeal dated 25th April 2005. The Appellant, however, following the receipt on 2nd April 2005 of the 1st Respondent solicitor’s letter of demand for payment of the judgment sum, instructed a new firm of solicitors to file a separate appeal on its behalf. The notice of Appeal is dated 3rd May 2005 and was filed on the 5th of May 2005.
The parties filed and exchanged briefs of argument. The Appellant’s brief was settled by Dr. Wale Olawoyin and out of the four grounds of appeal in the Notice of appeal he formulated two issues for determination as follows:
1. Whether the Appellant as Nigerian agent of the carrier, came into possession of the goods in Argentina or ever at all to justify the imposition of liability as a bailee.
2. Whether the established evidence at the trial relating to the receipt of goods in Argentina and loss of the goods off the coast of Brazil by the 2nd Respondent/Carrier could justify the imposition of liability on the part of the Appellant who is an agent of a disclosed principal for activities in Nigeria.
The 1st
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Respondent’s brief of argument was settled by Akobundu Ehiemere Esq. Therein he raised and argued a preliminary objection. In the event that the preliminary objection fails, he adopted the issues formulated by the Appellant.
The Appellant filed a Reply brief in which he responded to the Preliminary objection.
The 2nd Respondent did not file any brief of argument.
PRELIMIINARY OBJECTION:
The sole issue for determination in the 1st Respondent’s preliminary objection is whether by virtue of Appeal no: CA/I/682/10 decided on the 24th day of April 2013 which has the same parties, facts and issues; this appeal is not an abuse of Court process? Mr. Ehiemere in moving the preliminary objection submitted that this Court had on the 24th day of April, 2013 determined Appeal No. CA/L/682/2010 between NEDLLOYD LIJNEN B. V. ROTTERDAM v. (1). OFELLY AGRO-FARMS & EQUIPMENT CO. LTD. (2) UMARCO (NIGERIA) PLC. Learned counsel submitted that the Appeal arose out of the same suit between the parties in the Federal High Court, as this instant Appeal. He submitted that the parties are the same; that the Appellant in this appeal was the 2nd
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Respondent in Appeal No. CA/I/682/10 and was represented by counsel. Counsel submitted that the instant appeal was an abuse of Court process relying on the cases of SARAKI V. N.A.B. KOTOYE (1992) 11/12 SCNJ P.26 @ 48 and IGBEKE V. OKADIGBO (2013) 12 NWLR (Pt 1368) p. 229 @ 231. Learned counsel urged us to uphold the preliminary objection and to dismiss the appeal.
Learned counsel for the Appellant in his Reply brief responded to the preliminary objection. He submitted that the Preliminary Objection is premised largely on facts which are not before this Court in this Appeal. He argued that the facts in the preliminary objection have been surreptitiously distorted by the 1st Respondent. It is the contention of the Appellant that the 1st Respondent ought to have filed a Notice of Preliminary Objection supported by an affidavit to depose to the facts in support of the objection as that would have given the Appellant the opportunity to file a counter affidavit to put forward the true facts in respect of the objection. Counsel submitted that, if the Preliminary Objection was solely on law alone, the 1st Respondent would have been justified in giving notice of
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the objection in his brief of argument.
The Appellant then went on to set out what he claimed were the true facts.
On the issue of abuse of Court process, counsel submitted that the facts and subject matter of this Appeal is different from the facts of Appeal No. CA/L/682/2010 — NEDLLOYD LIJNEN B.V ROTTERDAM V. OFFELLY AGRO FARMS & EQUIPMENT CO. LTD & UMARCO (NIG) LIMITED.
Counsel cited the cases of AFRICAN REINSURANCE CORPOPATION v JDP CONSTRUCTION (NIGERIA) LIMITED (2003) 13 NWLR (PT 838) 609 @ 635 F-G and ABUBAKAR v BEBEJI OIL & ALLIED PRODUCTS LTD (2007} NWLR (PT 1066) 319 @. 377, where the SC gave judicial definitions of the term “abuse of Court process.”
He concluded that there is no abuse of Court process and urged us to over-rule the preliminary objection.
RESOLUTION:
The very narrow point for determination in this preliminary objection is whether the present appeal is an abuse of Court process given the judgment in Appeal No. CA/L/682/2010. Before going into the meat of the matter, it is apt to state that the Appellant is right that the 1st Respondent ought to have filed a separate Notice of
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Preliminary Objection supported by an affidavit in which it would depose to the necessary facts in support of the objection as the objection is based on facts and not law. Now the Appellant is challenging the facts stated in the 1st Respondent’s brief of argument as giving rise to the objection. Without affidavits, the Court is unable to determine the true facts on which the preliminary objection can be tested. See Amah v Nwankwo (2007) 12 NWLR (Pt. 1049) 552 @ 578. In spite of the failure of the 1st Respondent to file an affidavit in support of its preliminary objection, I will go ahead to determine the issue without wading into the controversial facts.
In the case of AFRICAN REINSURANCE CORPORATION v JDP CONSTRUCTION (NIGERIA) LIMITED (Supra) cited by the Appellant, the Supreme Court per Niki Tobi JSC defined the term “Abuse of Court process” thus:
?Abuse of Process of Court is a term generally applied to a proceeding which is wanting in bonafide and is frivolous, vexatious or oppressive. Abuse of process can also mean abuse of legal procedure or improper use of legal process. An abuse of process always involves some bias, malice, some
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deliberateness, some desire to misuse or pervert the system. There is said to be an abuse of the process of the Court when a party improperly uses the issue of the judicial process to the irritation and annoyance of his opponent.”
In the case of ABUBAKAR v BEBEJI OIL & ALLIED PRODUCTS LTD (Supra) also cited by the Appellant, the Supreme Court opined:
?Abuse of Process of the Court is defined as the improper use of process and procedure of the Court by a litigant. The Concept of Abuse of Court or judicial process denotes a perversion for the attainment of unlawful results. It is not the existence of the right to institute these actions that are protested against, rather it is the manner of the exercise of the right and the purpose of doing same that is abhorred. The term is generally applied to a proceeding, which is lacking in bona fide and has a tinge of malice.”
Given the above definitions, can this appeal be said to be an abuse of the process of the Court? I think not! The first appeal was filed by Femi Atoyebi SAN hired and paid for by the Appellant in appeal no CA/L/682/10 to represent the Appellant and the 2nd Respondent
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(Appellant in this appeal). The Appellant herein apparently did not pay serious attention to what was happening until the 2nd April 2005 when he received the 1st Respondent’s solicitor’s letter of demand to pay the judgment sum. It then dawned on him that it was necessary to file a separate appeal as his case was quite different from that of the Appellant in appeal no. CA/L/682/2010. During the hearing of Appeal No: CA/L/682/10, the Appellant did not participate in the Appeal as an Appellant and was only a nominal party as 2nd Respondent. His counsel attended the hearing of the Appeal because it received Hearing Notice to that effect but the Appellant’s interest was not canvassed in the appeal as he had filed his own separate appeal. Learned counsel had submitted which submission I agree with that the issues in Appeal No: CA/L/682/2010 did not in any way deal with the liability or otherwise of the Appellant since all the parties knew that the Appellant was pursuing a separate Appeal of its own. The Appellant herein was only an agent of a disclosed principal. Continuing in a joint appeal with his principal blurred his peculiar position, hence the decision to
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file a separate appeal. This was clearly not a case of abuse of legal process or improper use of legal process to the annoyance of his opponent. The appellant was fighting for his life as it were. The first appeal was dated 25th April 2005 and filed on 28/04/05 while this appeal is dated 03/05/05 and filed 05/05/05. The time lapse was minimal and all the parties involved knew of the second appeal. Further and more importantly, the issues in the two appeals are not the same. This is quite obvious from the two Notices of appeal. The Notice of Appeal in CA/L/682/2010 is at page 715 – 719 of the Record while the Notice of Appeal for this appeal is at pages 721 – 725. The grounds of appeal are different. The Appellant here is the 2nd Respondent in appeal CA/L/682/2010. There is no basis for the claim that this appeal is an abuse of Court process. The preliminary objection lacks merit and is hereby over-ruled.
ARGUMENTS ON THE ISSUES:
ISSUE 1:
Whether the Appellant as Nigerian agent of the carrier, came into possession of the goods in Argentina or ever at all to justify the imposition of liability as a bailee.
APPELLANT’S ARGUMENTS:
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Learned counsel submitted on the authority of BROADLINE ENTERPPISES LTD. V. MONTERREY MARITIME CORPORATION (1995) 9 NWLR (Pt. 417) 1 at 49 that a bailment properly so called is a delivery of chattels on trust, usually on contract, express or implied, that the trust shall be duly executed, and the chattels re-delivered in either their original or altered form, as soon as the time or use for, or condition on, which they were bailed shall have elapsed or been performed. Learned counsel also referred to Halsburys Laws of England, 4th ed, Vol. 2 Para 1501 p. 689 where it is stated that to constitute a bailment, the actual or constructive possession of a specific chattel must have been transferred by its owner or possessor (the bailor), or his agent duly authorized for that purpose, to another person (the bailee) in order that the latter may keep the same or perform some act in connection therewith, for which such actual or constructive possession of the chattel is necessary thereafter returning the identical subject matter in its original or altered form. Counsel submitted that possession lies at the heart of bailment but that possession is not enough to create a
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bailment. He submitted that in the words of learned authors L.S. Sealy and RJA Hooley, Commercial Law: , cases and materials, 2nd ed. (1999) at page 71, two other conditions must also be fulfilled. “First, the bailor must retain a superior interest in the chattel to that of the bailee. Secondly, the bailee must consent to take possession of the chattel for there to be a bailment.”
Counsel submitted that the Appellant did not receive possession of any goods from the 1st Respondent in Argentina, the country of loading; that by the very nature of the agency relationship between the Appellant and the 2nd Respondent, it was not within the contemplation of the parties that the Appellant shall perform any functions outside the shores of Nigeria. He posited that there was no evidence in the Court below that the Appellant assumed any responsibility to either take possession of the goods or even carry the goods from Argentina to Nigeria. At best, the bailment was between the 1st and 2nd Respondents. Learned counsel submitted relying on LAWAL V. DAWODU (1972) 8-9 S.C, 83, at 114 that having regard to the totality of the unchallenged evidence of the parties at
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the lower Court, the key ingredients in a cause of action in bailment against the Appellant are clearly absent; and the lower Court’s finding is that delivery of possession in Argentina did not involve the Appellant. It was consequently a miscarriage of justice for the Court to have turned round and implicated the Appellant for breach of bailment. Learned counsel urged us to hold that given the evidence in the Court below, the Appellant was not and could not have been a bailee of the goods of the 1st Respondent.
1ST RESPONDENT’S ARGUMENTS:
Learned counsel for the 1st Respondent on this issue set out the definitions of “Agents”, “Bailment (Bailor and Bailee)” in Blacks Law Dictionary and HALSBURYS LAWS OF ENGLAND (VOL 2) 4TH EDITION and submitted that the 1st Respondent, Appellant and 2nd Respondent entered into an agreement for delivery of the consignment of goods; that the 1st Respondent as the bailor delivered his consignment to the 2nd Respondent of which the Appellant as the Agent of the 2nd Respondent was fully aware of. Counsel submitted that the Appellant was part of this agreement and was indeed aware of the Bailment of all material times
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and therefore cannot absolve itself of the liabilities of the Bailee. Learned counsel submitted that in the trial Court, the Appellant and the 2nd Respondent were represented by one Counsel- Femi Atoyebi SAN and that they filed a joint defence and that one witness testified for them. Counsel contended that the Appellant did not at this point, absolve, deny or exempt itself from the liability of the Bailee neither did it deny its full agency to the 2nd Respondent. Counsel submitted that their sole witness at the trial testified that the ship sank and that the testimony is evidence that the Appellant was aware, privy and party to the bailment. He submitted that the faith of the Appellant is tied to that of the 2nd Respondent as the Appellant is the eyes, hand and effectiveness of the 2nd Respondent hence their joint testimony in the trial Court. Learned counsel relying on the cases of LAWAL VS DAWODU (1972 ) 8-9 SC 83 at 114-115 and C.P.C V. OMBUGADU (2013) 18 NWLR (Pt.1385) Pg 66 @ P83 submitted that evolution of evidence is primarily a function of the trial Court and that a Court of Appeal ought not, except in exceptional circumstances, interfere with what must
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be considered the outcome of a dispassionate consideration of the evidence by a judge who saw and heard the witness give evidence. Learned counsel submitted that the trial Judge saw and understood the witness who testified for the Appellant and the 2nd Respondent conjunctively: that at no point did the Appellant at the trial Court absolve itself from the liability of the 2nd Respondent. He opined that the Appellant did not tell the Trial Court that the 2nd Respondent was the Bailee, therefore it should bear the burden of its negligence and tortuous act alone. He contended that the Appellant raising it now is an afterthought which cannot be entertained by this Court. Learned counsel prayed us to hold that the Appellant being an Agent of a disclosed Principal and at all times involved with the consignment of goods of the 1st Respondent and testified of its state should be held liable. Relying on NIGERIAN PORTS PLC. VS BEECHAM PHARMACEUTICAL PTE LTD. & ANOR Nigeria Shipping cases (Vol. 10) 2005 pg 204, ratio 3 counsel submitted that it is a general principle of law and also trite that an Appellant will not ordinarily be allowed to raise on appeal a question
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which was not raised, tried or considered by the trial Court. Counsel submitted that the Appellant did not at the Trial stage enter its own Defence separately. Rather it testified as a witness for and on behalf of the 2nd Respondent. It never argued that it did not receive the goods from the 2nd Respondent; it did not mention that the bailee is solely responsible. The Appellant as agent spoke and stood its ground for the 2nd Respondent. Counsel submitted that it cannot now withdraw on the imposition of liability by the Trial Court.
In its Reply brief, it was argued for the Appellant that the issue of whether the Appellant was a bailee was not a new issue raised on appeal. Counsel referred to paragraph 1.1 of the Amended Statement of Defence at page 443 Vol. 11 of the Record where it was denied that the Appellant and the 2nd Respondent are “bailees for reward in respect of the Plaintiff’s (1st Respondent’s) goods”. Counsel submitted that the issue was also canvassed in the written address on behalf of the Appellant and the 2nd Respondent at page 609 Vol. 11 of the Record.
RESOLUTION OF ISSUE 1:
The issue for determination here is whether
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the Appellant as Nigerian agent of the carrier, came into possession of the 1st Respondent’s goods in Argentina or ever at all to justify the imposition on it of liability as a bailee. HALSBURYS LAWS OF ENGLAND (VOL 2) 4TH EDITION Pg. 688, defines bailment thus:
“A bailment, properly so called is the delivery of personal chattel on trust, usually on contact, express or implied, that the trust shall be duly executed, and the chattels redelivered in their original or an altered form, as soon as the time or use for, or condition on which they were bailed shall have elapsed or being performed.”
In the case of Adetoun Oladeji (Nig) Ltd v. Nigerian Breweries Plc (2007) 5 NWLR (Pt. 1027) 415 @ 444 Onnoghen JSC in his contributory judgment quoted the observation of the lower Court that bailment arises by way of contract wherein property is delivered by one person (bailor) to another (bailee) who holds the property for a certain purpose under an express or implied term of contract.
From the evidence led in the case and the findings of the trial judge, can it be said that the Appellant at any point in time came into possession of the goods of the 1st
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Respondent as to justify the imposition on it of liability as a bailee? Was there any contract of bailment between the 1st Respondent and the Appellant? It was common ground between the parties that the Appellant was an agent to the 2nd Respondent. The appellant had stated that by the nature of their agency relationship, it was not within the contemplation of the parties that the Appellant would perform any function outside Nigeria. No evidence was led to rebut the claim. The learned trial judge in his judgment at page 708 Vol. 11 of the Record made the following finding:
“The 1st Defendant (2nd Respondent) in this case as shown by the evidence on both sides is a bailee for reward and as settled by the authorities there is a presumption of negligence on its part when it fails to deliver the goods entrusted to it for carriage for valuable consideration by the Plaintiff.”
Further down at page 709, the learned trial judge said “I find that the 1st Defendant is liable to the Plaintiff in negligence and detinue” About two lines down “The evidence of PW1 in this case is that when he demanded the delivery of the cargo the 1st Defendant failed to deliver
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the goods.” There was no finding at all that the Appellant was in possession of the goods or failed to deliver on demand. There was no evidence of finding of any contract or agreement between the Appellant and the 1st Respondent, such as would give rise to the relationship of bailor and bailee. There was no evidence or any fact from which it can be inferred that the agency between the appellant and the 2nd Respondent covered receipt of the goods in Argentina. Yet despite all these findings, the learned trial judge found the Appellant liable along with the 2nd Respondent as a bailee. The contention of learned counsel for the 1st Respondent is that it, the appellant and the 2nd Respondent entered into an agreement for delivery of the consignment of goods. There is no evidence of any such agreement with the Appellant. In another breadth, learned counsel for the 1st Respondent said that the Appellant as agent of the 2nd Respondent was fully aware that the 1st Respondent as bailor delivered its consignment to the 2nd Respondent. Since when did being aware of a bailment make one a bailee as well? A Plaintiff has the right to sue whoever he desires to sue. As a civil
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matter, the burden rests on him to prove the case on a balance of probabilities. The evidential burden begins with the Plaintiff. It is only where the Plaintiff discharged the evidential burden that the burden will shift to the defendant. Learned counsel for the 1st Respondent had argued at page 11 of their brief of argument as follows:
“The 1st Respondent, Appellant and 2nd Respondent entered into an agreement for delivery of the consignment of goods. The 1st Respondent as the bailor delivered his consignment to the 2nd Respondent in which the Appellant as the Agent of the 2nd Respondent was fully aware of. The Appellant was part of this agreement and was indeed aware of the Bailment at all material times therefore cannot absolve itself of the liabilities of the Bailee which it does appeal from this Honorable Court.
In the pleadings in the trial Court, the Appellant and the 2nd Respondent responded jointly in its Statement of Defence and Amended Statement of Defence. See 536-540 of Vol. II of the Records of Appeal. The Appellant and the 2nd Respondent were represented by one Counsel-Femi Atoyebi.
One witness testified for both the Defendants
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(Appellant and 2nd Respondent) who even worked for both the Appellant and the 2nd Respondent. The Appellant did not at this point, absolve, deny or exempt itself from the liability of the Bailee neither did it deny its full agency to the 2nd Respondent. The Appellant and 2nd Respondent Witness at the trial Court testified that the ship sank. These testimonies are evident that the Appellant is aware, privy and party to. If the 2nd Respondent succeeds, the Appellant succeeds, where the 2nd Respondent is liable, the Appellant is liable. The Appellant is the eyes, hand and effectiveness of the 2nd Respondent hence the testimony of the Defendants (2nd Respondent and Appellant) in the trial Court.”
The above argument of learned counsel does not represent the law. The Appellant was sued along with the 2nd Respondent jointly and severally. In the case of Dickson & Anor v. Assamudo (2013) LPELR-20416 (CA) Garba JCA observed:
“The law is beyond argument that joint tortfeasors can be sued severally and jointly and each would be liable in damages for the injuries caused by their joint acts which amounted to the tort in issue. See Izuogu v. Emuwa (1991) 4
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NWLR (183) 78; Iyere v. B.F.M (2008) 12 MJSC, 102. However, it is to be noted that before the issues of joint or several liability of joint tortfeasors arises, there must be evidence of participation of the persons or parties sued in the commission of the tort complained of, first. Mere presence of a person at the scene of an alleged tort without evidence of participation directly or by conduct in the commission of the tortuous act would not, or better, cannot make a person liable for such acts simply because he was sued along with the tortfeasors.”
In the absence of any evidence against the appellant that it participated in the receipt of the goods in Argentina, it cannot be deemed a bailee for the goods of the 1st Respondent. The fact that there was joint representation of the Appellant and the 2nd Respondent cannot make any difference if it turns out there was evidence against the 2nd Respondent and none against the Appellant. The clear finding of the lower Court as already shown above implicated the 2nd Respondent but not the Appellant. It is true as submitted by learned counsel for the 1st Respondent relying on the cases of LAWAL VS DAWODU (supra
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and C.P.C V. OMBUGADU (supra) that evaluation of evidence and ascription of probative value to such evidence is primarily the function of the trial judge who saw and heard the witnesses give evidence. There are however circumstances when the appellate Court may intervene as aptly set out in the same authority cited and quoted by learned counsel for the Appellant per Coker JSC:
“In the evaluation of evidence we think it firmly established in our jurisprudence that a Court of Appeal ought not, except in exceptional circumstances, to interfere with what must be considered the outcome of a dispassionate consideration of the evidence by a Judge who saw and heard the witness give evidence. The ascription of probative values to evidence comes at a later stage of the whole process and it is also established that this is a matter for the Judge who saw and heard those witnesses give evidence. Nevertheless, the area is one in which the Court of Appeal is at least equally qualified and competent and indeed is often required to exercise jurisdiction in certain, albeit exceptional circumstances. A trial Judge, however learned, may draw mistaken conclusions from
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indisputable primary facts and may indeed wrongly arrange or present the facts on which the foundations of the case rest. In those circumstances, it would be completely invidious to suggest that a Court of Appeal should not intervene and do what justice requires but should abdicate its own responsibility and rubber-stamp an error however glaring.”
I do not have any doubt that the present appeal falls within the category of cases that warrant a review of the trial Court’s conclusion on the established facts. The learned trial Judge erred in imposing liability on the Appellant as a bailee of the 1st Respondent’s goods when his lordship made no findings whatsoever to support the imposition of the liability. Issue 1 is resolved in the negative in favor of the Appellant
ISSUE 2:
Whether the established evidence at the trial relating to the receipt of goods in Argentina and loss of the goods off the coast of Brazil by the 2nd Respondent/carrier could justify the imposition of liability on the part of the Appellant who is an agent of a disclosed principal for activities in Nigeria.
APPELLANT?S ARGUMENTS:
Learned counsel on this
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second issue, submitted relying on the cases of NIGERIA PROGRESS LTD. V. N.E.L. CORP. (1989) 3 NWLR (Pt. 107) 68 @ 84A & 85D and PWOL v. UNION BANK PLC (1999) 1 NWLR (pt. 588) 631 @ 636 G-H that it is settled law that an agent acting on behalf of a known or disclosed principal is not liable for his acts; and that judgment can therefore not be given against an agent of a disclosed principal. Counsel submitted relying on MOFAS SHIPPING LINE (NIG) LTD. V. NATIONAL MARITIME AUTHORITY (2000) 9 NWLR (pt. 672) 391 @ 398A-C that this general principle has been significantly altered by the provisions of Section 16 of Admiralty Jurisdiction Act 1991.
Learned counsel submitted that Section 16 does not apply to the facts of this appeal for the following reasons:
1. A combined reading of Section 16(1) and (3) clearly shows that certain elements must be present in the factual matrix of the action before an agent may be held personally liable. The wordings of the Section are quite clear to the effect that an agent must have been authorized to act for a ship in a Nigerian Port or in Nigerian territorial waters.
2. The potential independent personal
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liability of an agent will only arise in connection with “the act, default, omission or commission of the ship in respect of anything done or failed to be done in Nigeria”.
3. There must have been some positive act or omission by the agent in Nigeria which will form the basis of the cause of action against the agent.
Learned counsel submitted that the above critical elements are totally absent in the established facts in the Court below. He posited that there was no evidence in the Court below that the ship reached a Nigerian Port or Nigerian territorial waters; that in the absence of such evidence, Section 16 could not be applied in imposing liability on the Appellant. Counsel further submitted that where Section 16 has been clearly shown not to be applicable, the general common law principles on the law of agency regarding the non-liability of an agent of a disclosed principal will apply. Counsel cited the case of THE M V. “CAROLINE MAERSK” SISTER VESSEL TO M. V. ?CHRISTIAN MAERSK? & ORS V. NOKOY INVESTMENTS LIMITED (2002) 12 NWLR (Pt. 782) 472.
Learned counsel further submitted that the apparently broad statement in
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MOFAS SHIPPING LINE (NIG) LTD. V. NATIONAL MARITIME AUTHORITY (Supra) must not be seen as a blanket authority suggesting automatic liability of agents in all situations (which appeared to be the attitude of the Court below) but must be read in the con of the particular facts of that case. He submitted that the issue in that case, was whether a Nigerian agent was liable to pay statutory levies to the National Maritime Authority for agency services it renders in Nigeria. Counsel further cited the case of COMET SHIPPING AGENCIES LTD. V. FEDERAL MINISTRY OF HEALTH & ANOR (2003) 12 WRN 76, 82, 95 where it was held (per Oguntade JCA as he then was) that “…that Section 16(3) of Admiralty Jurisdiction Decree, cannot be used indiscriminately as a basis of general liability of an agent even where there is an affreightment contract in existence between the carrier, his principal and the Consignee.?
Counsel finally urged us to find that the evidence presented in the Court below did not justify the finding of liability on the Appellant as an agent of a disclosed principal for activities which did not have any connection with
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Nigeria.
RESPONDENT’S ARGUMENTS:
Learned counsel for the Respondent on issue 2 submitted that the Appellant at the trial was given ample opportunity to either align itself with the 2nd Respondent or separate itself as a disclosed agent of the 2nd Respondent; but that the Appellant chose to align itself with the 2nd Respondent as regards the goods in the custody of the 2nd Respondent as bailee. Counsel further submitted that the Appellant failed to raise a preliminary objection at the trial to counter its inclusion as a party in the trial. He posited that the attempt by the Appellant to now absolve itself from liability is an afterthought with the intention of depriving the 1st Respondent of the due execution of the legitimate judgment obtained against it.
Learned counsel set out the provisions of Section 16 of the Admiralty Jurisdiction Act and submitted that by Section 16(3) the agent may be personally liable irrespective of the liability of his principal for the act, default, omission or commission of the ship in respect of anything done or failed to be done in Nigeria. Learned counsel argued that the Appellant as an agent of the 2nd respondent
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can not absolve himself from liability for the 1st Respondent’s goods consigned to the 2nd Respondent which ought to have been delivered in Nigeria; but were not delivered. The Appellant was therefore personally liable irrespective of the fact that the acts which gave rise to the injury occurred in Argentina, Brazil, or any other country. Counsel posited that in so far as the 2nd Respondent failed to deliver the 1st Respondent’s consignment in Nigeria, the appellant is liable in view of Section 16(3) of the Admiralty Jurisdiction Decree 1991.
Learned counsel urged us to hold that the Appellant and 2nd Respondent are jointly liable and that the 1st Respondent deserves to be refunded his monies for the consignment and the huge sums of money it has spent prosecuting these suits and Appeals. He urged us to dismiss the appeal.
RESOLUTION OF ISSUE 2:
It is not in dispute that the Appellant is the Nigerian agent of the 2nd Respondent. The general rule as laid down in the Supreme Court case of Niger Progress Ltd v. N. E. L. Corp (1989) 3 NWLR (Pt. 107) 68 @ 84A is that a defendant acting on behalf of a known and disclosed principal incurs no
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liability and the fact that the disclosed principal is a foreigner does not affect the question of liability. See also Khonam v John (1939) 15 NLR 12: Carlen (Nig) Ltd v. University of Jos (1994) 1 NWLR (Pt 323) 631 @ 636; Okafor v. Ezenwa (2002) 13 NWLR (pt 784) 319; Osigwe v. PSPLS Mgmt Consort (2009) 3 NWLR (Pt. 1128) 378.
Section 16 of the Admiralty Jurisdiction Act created an exception to this general Rule. 16(1) and (3) provide:
“16(1) The charterer, monger/operator or master of any Ship in a Nigerian Port or territorial waters who authorizes an agent to act for a ship in relation to any purpose for which the ship is in Nigeria, shall be liable for any act, declaration, default, omission or commission of his agent in carrying out his agency”.
16(3) “A person who acts as an agent of the owner charterer, manager or operator of a ship may be personally liable irrespective of the liability of his principal for the act, default, omission or commission of the ship in respect of anything done or failed to be done in Nigeria”.
This Court held in MOFAS SHIPPING LINE (NIG) LTD. V. NATIONAL MARITIME AUTHOURITY (Supra) (per Aminu Sanusi
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JCA at P. 398) that
“The wording of Section 16(3) of the Decree which have mandatory effect is clear and unambiguous. They in my view are intended to outrightly change the previous position of the common law principles of agency law which I restated above. This is more so in view of the fact that the legislature reduced the hitherto common law exception to the general rule. For whatever reason the legislature intended to change the status quo existing before 1991 as rightly held by the lower Court.
…I am of the view that Section 16 of the Admiralty Jurisdiction Decree No, 59 of 1991 has changed the common law principle of law of agency in admiralty and shipping matters and now makes an agent of disclosed principals in admiralty actions personally liable to be sued regardless of the traditional liability of his disclosed principal under the common law”.
Therefore an agent may be sued along with his principal under the circumstances stipulated in Section 16(3). For the agent to be liable certain conditions must be satisfied. See THE M. V. “CAROLINE MAERSK” SISTER VESSEL To M.V. ?CHRISTIAN MAERSK? & ORS V. NOKOYY
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INVESTMENTS LIMITED (2002) 12 NWLR (pt. 782) 472 where Ayoola JSC at 506 – 507 F – C stated as follows:
“One final point taken on the question of liability of the 3rd Defendant which was, admittedly, an agent of the ship. Normally, an agent is not vicariously liable for the default of his principal. However, Section 16(3) of the Admiralty Jurisdiction Act creates special liability of the agent in the following terms… The liability of the agent in terms of Section 16(3) is dependent on whether the act, default, omissions or commission was (or were) in respect of anything done or to be done in Nigeria. That the act, default etc was in respect of anything done or to be done in Nigeria by the ship is an essential part of the cause of action and is a material fact that ought to be alleged and proved. Speculation as to where such event happened will not do. It is clear that in this case the 3rd Defendant had been sued as an agent and as such he could only be liable pursuant to Section 16(3) of the Admiralty Jurisdiction Act. The act, default, omissions or commission of the ship for which the ship was sued could have been in or outside Nigeria. There was no
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allegation that any such event happened in Nigeria. In these circumstances, there was really no basis for making the 3rd Defendant liable. In my judgment, the appeal of the 3rd Defendant must be allowed.”
The liability of the agent in terms of Section 16(3) is dependent on whether the act, default, omissions or commission was in respect of anything done or to be done in Nigeria.
Learned counsel for the Respondent had submitted:
“that by Section 16(3) the agent may be personally liable irrespective of the liability of his principal for the act, default, omission or commission of the ship in respect of anything done or failed to be done in Nigeria. Learned counsel argued that the Appellant as an agent of the 2nd respondent can not absolve himself from liability for the 1st Respondent’s goods consigned to the 2nd Respondent which ought to have been delivered in Nigeria; but were not delivered. The Appellant was therefore personally liable irrespective of the fact that the acts which gave rise to the injury occurred in Argentina, Brazil, or any other country. Counsel posited that in so far as the 2nd Respondent failed to deliver the 1st Respondent’s
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consignment in Nigeria, the appellant is liable in view of Section 16(3) of the Admiralty Jurisdiction Decree 1991.”
The clear and unambiguous interpretation of the phrase “anything done or failed to be done in Nigeria” means that the act or omission of the ship which gave rise to the injury must have occurred in Nigeria. The mere fact that delivery is in Nigeria cannot constitute the act or omission giving rise to the injury. The injury is the failure to deliver the goods. Whatever it is that led to the non-delivery should have occurred in Nigeria for the Appellant to be liable. In this case the act or omission that led to the non-delivery occurred in Argentina or Brazil.
Learned counsel for the Respondent had submitted that the issue of the Appellant being the agent of a disclosed principal, the 2nd Respondent and consequently not a proper party in the suit was not raised by the Appellant at the trial by way of preliminary objection or in the pleading. Rather the Appellant aligned itself completely with the 2nd Respondent in defending the suit. It was contended that it was too late in the day to take up the matter on appeal.
?A careful
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perusal of the Record of Proceedings reveal that the issues of the appellant being an agent of a disclosed principal or Section 16 of the Admiralty Jurisdiction Act were not raised or discussed. These matters are coming up before us as fresh points or issues. The law is well settled that an appellate Court will not allow a party to raise for the first time on appeal a point or issue not canvassed in the lower Court. Where however the fresh issue or point involves a substantial point of law as in the instant appeal, the Appellant ought to seek and obtain the leave of this Court before raising the issue or point. See Gabriel v. The State (1989) NWLR (Pt. 122) 457; Shettima & Anor v. Gani & Ors (2011) LPELR -417 (SC); Onyemaizu v. Orjoko (2010) 4 NWLR (Pt. 1185) 504. There is no evidence that the Appellant sought or obtained the leave of this Court before raising the new issue. This issue 2 must consequently be struck out and it is hereby struck out.
?Having resolved issue 1 in favor of the Appellant by finding that the learned trial Judge erred in imposing liability on the Appellant as a bailee of the 1st Respondent’s goods when his lordship’s
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finding is that the 2nd Respondent alone is the bailee of the 1st Respondent’s goods, I hold that this appeal is meritorious and is bound to succeed. The appeal is allowed. The judgment of the lower Court in Suit No FHC/L/CS/1239/97 delivered on 01/03/05 as it concerns the appellant herein is set aside and the claims against the appellant are dismissed with costs assessed At N100,000.00 against the 1st Respondent.
Other Citations: (2016)LCN/8850(CA)
