West African Shipping Agency (Nig.) Ltd & Anor V. Alhaji Musa Kalla (1978)
LawGlobal-Hub Lead Judgment Report
ESO, J.S.C.
On 17th March, 1975, in Suit No. LD/511/71, the Lagos High Court, presided over by Adebiyi J., gave judgment in favour of the plaintiff, Alhaji Musa Kalla, against the 1st defendants, the West African Shipping Agency (Nigeria) Ltd., for the sum of N8,640 out of which the sum of N7,840 represents special damages while the balance of N800 was awarded as general damages.
In that court, the plaintiff claimed against the 1st and the 2nd defendants for –
“the delivery of 560 bags of beans or the sum of 6,000 Pounds (N12,000) being the value of the 560 bags of beans delivered to the Defendants under an agreement by sea in May, 1970, and for general damages for breach of contract.”
The case of the plaintiff is set out in his Statement of Claim and we shall reproduce some paragraphs hereunder –
“3. In May 1970, the Plaintiff paid the Defendants freight charges for the carriage of 560 bags of beans in a ship called “LIHAUG” from Lagos/Apapa Wharf to Port Harcourt.
- In demonstration of the acceptance of this agreement of carriage the Defendants accepted 560 bags of beans from the Plaintiff into the ship and caused BILL OF LADING dated 29th May, 1970 to issue, in addition to a manifest also issued by the first Defendant.
- The Defendants caused copies of the BILL OF LADING and the MANIFEST to be served on the Plaintiff as the Shippers of the beans in Lagos/Apapa Wharf and as the Consignee in Port Harcourt.
- The ship “LIHAUG” left Lagos/Apapa with the Plaintiff’s 560 bags of beans bound for Port Harcourt.
- The Plaintiff went to Port Harcourt to meet the ship “LIHAUG” in order to collect his 560 bags of beans.
- The Plaitniff on presenting his BILL OF LADING and the MANIFEST at Port Harcourt was disappointed to observe that he was not allowed to take delivery of his 560 bags of beans, by the Captain of the ship.
- That ship later left Port Harcourt for other destinations with the 560 bags of beans belonging to the Plaintiff.
- The two Defendants failed to deliver the 560 bags of beans to the Plaintiff at Port Harcourt and the Plaintiff does not know the whereabout of his 560 bags of beans.”
The 1st defendant denied liability in their Statement of Defence and averred inter alia-
“2. The 1st Defendant is not and has never been a Carrier of good by ship called “LIHAUG” but is merely a shipping agents.
4….the 1st Defendant will establish that the Bill of Lading was issued and signed by the Master of the Vessel “LIHAUG” but admits that the manifest was issued by the 1st Defendant.
- On the 1st of June 1970 the vessel “LIHAUG” was sold by the 2nd Defendant to the Fleetway Line Limited
- The 1st Defendant states that since it was not the carrier of the goods in question, it was not its duty to arrange for an agent in Port Harcourt.
10…. the 1st Defendant reiterates that since the vessel “LIHAUG” has been sold by the 2nd Defendant they have no more connection with the said vessel “LIHAUG”. In the premises therefore the 1st Defendant could not have arranged for an Agent in Port Harcourt.”
The 2nd defendant neither filed a Statement of Defence nor took part in the proceedings.
Before proceeding further, we would like to state that on the 22nd of April, 1972, following an order of the court, the 1st defendant delivered answers to interrogatories which were filed by the plaintiff. The interrogatories and answers are as follows –
“1. What are the full names of your Principal
Messrs. Leif Nyklebust Fonnes
- What is the full address for service in Nigeria of your Principal
c/o West African Shipping Agency (Nigeria) Limited,
21, Warehouse Road, Apapa.
- What is the Overseas address of your Principal
c/o Messrs. ARNOLD NYRDAL
4301 SANDES, P. O. B 104; NORWAY.”
Indeed, it was as a result of these answers to the interrogatories that the 2nd defendant was joined and Fleetways Lines Ltd., which had originally been named as the second defendant was struck out of the action.
Now, the case of the plaintiff as presented in the evidence of his witness, one Joseph Kenneth Ogbemiasor, who said he was the shipping and office Manager of a company known as Pacmas (Nig.) Ltd., was that this company (Pacmas Nig. Ltd.) was appointed by the plaintiff to handle his cargo through the first defendants to Port Harcourt. It was this company that handed the 560 bags of beans to the 1st defendants and paid the freight for the shipment of the cargo. The 1st defendants loaded the 560 bags of beans on a ship known as M. S. LIHAUG, and the goods were to be delivered to the plaintiff at Port Harcourt. But those goods were never delivered. And, as learned counsel for the appellant has said in this court, up till now, the goods have not been delivered to the plaintiff. The first defendants delivered a bill of lading to Ogbemiasor which was tendered as Exhibit B.
The 1st defendants admitted, through the evidence of one Bisiriyu Giwa, their claims Manager, that they took the 560 bags of beans from Ogbemiasor and loaded them on the vessel “LIHAUG”. However, it was their case that they were agents of the ship owner and it was the duty of that ship owner to arrange for agents at every port of call.
The learned trial Judge, in a considered judgment, found for the plaintiff against the 1st defendants, and dismissed the case against the 2nd defendant. He said –
“If I understand what the 1st Defendants said at the trial it is that whatever they did in this matter they did as the agents of the owners of the M. S. Lihaug. The Bill of Lading (Exh. B) was signed by the Master of the ship and Exh. C (the manifest) was signed clearly “As Agents Only”. Nowhere was it shown, however, where the Plaintiff or his agents were informed of the identity of the 1st defendants’ principals. In fact, the evidence in this case, which I accept, is that the 1st Defendants informed Ogbemiasor of Pacmas that they were the owners of the ships M.S. Lihaug. It is worthy of note that the form of the Bill of Lading concerned does not bear the name of the shipowners at all. The only shipping name appearing on Exh. B is that of the 1st defendants by a rubber stamp impression over the duty stamps.
The plaintiff has now lost his 560 bags of beans. He gave evidence that he bought each bag for 7 Pounds (N14) and had hoped to sell at 10 Pounds (N20) per bag. The loss of expected profits and indeed the freight on the goods which was proved were, however, not claimed as special damages in the writ.”
The defendant has appealed against this decision to this court and learned counsel representing him, Mr. Coker relied on 5 grounds of appeal which raise two main issues. They are –
- That the learned trial Judge ought not to have found the 1st defendants liable as all documentary evidence before him and the answers to the interrogatories delivered by the 1st defendants show that the 1st defendants could not possibly be the owners of the ship “Lihaug” but agents of the owners.
- That the learned Judge was wrong in his award of damages.
With regard to the first issue, it was Mr. Coker’s submission that on the face of the evidence before the court, the learned trial Judge should have found that the 1st defendants were mere agents of the owners of the ship. As they have disclosed the owners in the answers they gave to interrogatories, the action ought to have been taken against the owners of the ship – the 2nd defendants – and the first defendants should incur no liability.
We drew the attention of learned counsel to Exhibit B, the bill of lading, which indicates that the first defendants held themselves out as the carriers of the goods. Learned counsel’s reaction was that this would still impose no liability on the 1st defendants. He relied on clause 17 of Exhibit B which deals with the “identity of carrier”. The clause provides –
“Identity of Carrier.
The contract evidenced by this Bills of Lading is between the Merchant and the Owner of the vessel named herein (or substitute) and it is therefore agreed that the said ship-owner only shall be liable for any damage or loss due to any breach or non-performance of any obligation arising out of the contract of carriage, whether or not relating to the vessel’s seaworthiness. If, despite the foregoing, it is adjudged that any other is the carrier and/or bailee of the goods shipped hereunder, all limitations of, and exonerations from, liability provided for by law or by this Bill of Lading shall be available to such other.
It is further understood and agreed that as the Line, Company or Agents who has executed this Bill of Lading for and on behalf of the Master is not a principal in the transaction, the said Line, Company or Agents shall not be under any liability arising out of the contract of carriage, nor as carrier nor bailee of the goods.”
Counsel also referred to the manifest, Exh. C, where the 1st defendants signed “As Agents Only”.
There is no doubt that Exhibit “B” forms the basis of the agreement between the parties in this case. The exhibit clearly indicates the 1st defendants as the carrier of the goods. The “identity of the carrier” was specified in paragraph 17 of the exhibit. While the paragraph states that the contract is between the merchant and the “owner of the vessel” named in the exhibit, it is significant, as the learned trial Judge had rightly pointed out, that the exhibit bears, throughout, no name of the ship owner. The only shipping name contained in the exhibit is that of the 1st defendant and indeed the only contracting parties disclosed in the exhibit are the plaintiff and the 1st defendants. It is settled law that when a person makes a contract in his own name, without disclosing either the name or the existence of a principal, he is personally liable on the contract to the other contracting party, even though he may be in fact acting on a principal’s behalf; see Collings v. Associated Greyhound Race Ltd. (1930) 1 Ch. D. 1 as per Lord Hanworth, MR at p.32. See also Halbury’s Laws of England (4th Edition) Vol. 1 para. 853. Exhibit B clearly puts the 1st defendant forward as the principal contracting party in this case. No one else has been represented as the carrier or bailee of the goods.
Mr. Coker has urged upon us that the answers to the interrogatories were sufficient notice to the plaintiff, who should, after the disclosures in the interrogatories pursue his claim against the owners of the vessel; these owners having been disclosed by the interrogatories. The short answer to this is that once a person puts himself forward as a contracting party, whether as an agent or a principal, he will continue to be liable even after the discovery of the agency by the other party. The only thing that stops his liability is the clear and unequivocal election by the other contracting party to look to the principal alone. See Skith – Bird v. Blower (1939) 2 All ER 406 as per Luxmoore LJ. Also, in the words of Lord Reid, in Basma v. Meekes (1950) AC 441 –
“an agent who contracts in his own name does not cease to be contractually bound because it is proved that the other party knew when the contract was made that he was acting as agent.”
We will now consider the submissions of learned counsel on Exhibit C. Mr. Coker has urged that as the 1st defendants signed that document (Exhibit C) “as agents only”, they could not be liable. In Ariadne Steamship C. v. James McKelvie (1922) 1 KB. 578, Atkin LJ., considered the significance of the use of such words. He said (p.536) –
“I have always understood the law to be that the words “on account of” and the words “as agents” are conclusive, when qualifying the signature to negative liability as principal, and that whether the actual principal is disclosed or not. If there is a principal, the principal is bound; if not, the agent may be liable for breach of warranty of authority, but not otherwise.”
Bankes LJ., ibid p.526 was of the same opinion. He said –
“A man, though agent, may very well intend to bind himself; and he does bind himself if he contracts without restrictive words to show that he does not do so personally. It is important that mercantile men should understand that, if they mean to exclude personal recourse against themselves on contracts which they sign, they must use restrictive words, as if they sign per procuration, or use some other words to express that they are not to be personally liable.”
Lord Summer in Universal Steam Navigation Co. v. James McKelvie 1923 AC 492 at p. 501, while agreeing with these views was of the further opinion that when there are words like “agents only” they can only qualify liability if they can be so construed in conjunction with the contract as a whole. He said –
“I have no doubt that, when people add “agent” to a signature to a contract, they are trying to escape personal liability but are unaware that the attempt will fail. The result, however, is the same. When words added to a signature in themselves qualify liability, it is because, as words, they can be so construed in conjunction with the contract as a whole.”
(Underlining ours).
The important question to ask here is where Exhibit C could be construed as constituting a contract between the parties and the words “as agents only” in the exhibit construed in conjunction with that contract Exhibit C is merely a manifest containing only the names of the shippers and the consignees, the marks on the packages, the number and the contents and no more. It cannot be said, with any stretch of imagination, that this exhibit constitutes any contract between the parties. No terms whatsoever have been disclosed in the exhibit and the words “as agents only” could not be referrable to, or construed in conjunction with any contract. This leaves Exhibit “B” as the only contract between the parties and it is our view that the learned trial Judge was right in his conclusion that, on the evidence, the 1st defendants are liable in this case.
The second issue taken by learned counsel for the appellant is the issue of damages. The learned trial Judge awarded both special and general damages. The plaintiff made a claim for the loss of 560 bags of beans at N14 per bag. He gave evidence that the N14 represents the purchase price. His evidence on this was not challenged. Mr. Coker has urged on us that the evidence on this emanated only from the plaintiff.
It has been held by this court that strict proof in the con of special damages can mean no more than such proof as would readily lead itself to quantification or assessment. See Okulaja v. Haddad (1973) 11 S.C. 357; p. 362; where the court agreed with the Privy Council decision in Adel Boshali v. Allied Commercial Exporters Ltd. (1961) 4 All NLR 917. Lord Guest, in the latter case, (delivering the judgment of the Lords of the Judicial Committee said (p.921)-
“The Federal Supreme Court took the view that the figure of 6p per yard for loss of profit on the sale of the goods awarded by the trial Judge rested on the ipse dixit of the appellant that he would have made a profit of 6p and that this was not sufficient proof of his actual loss of profit. The only evidence as to loss of profit came from the appellant who was an expert in the trade and whose evidence was accepted by the trial Judge. He was not cross-examined on the basis that his claim was excessive. The trial Judge was in their Lordships view fully entitled in the absence of any contrary evidence to take the figure of 6p per yard as the appellants’ loss of profit.’
In this case, the plaintiff’s evidence in regard to the purchase price of the beans is uncontroverted. He paid for them and he would know what they cost him. He has that peculiar knowledge. His evidence of what he paid for the beans, uncontroverted as it were, is sufficient proof of his claim for special damages and the learned trial Judge is perfectly justified in this award.
But the learned trial Judge also awarded general damages. It is not stated on the record upon what principles the award was made. Before making the award however, the learned trial Judge has said that “the loss of expected profits and indeed the freight on the goods which was proved were, however, not claimed as special damages in the writ.” No doubt if this had been claimed, it would have had to be proved as special damages and an award of general damages in regard thereto would be unjustified. It is true that in as far as awards of general damages are concerned, a trial Judge must make his own assessment of the quantum of such general damages, and as pointed out by this court in Dumez (Nig.) Ltd. v. Ogboli (1972) 1 All NLR 241 as per Lewis, JSC., (p.250) –
“on appeal to this court such general damages will only be altered if they were shown to be either manifestly too high or manifestly too low or awarded on a wrong principle.”
It does appear to us that the award of general damages in this case was a way of compensating the plaintiff for the loss of “expected profits and the freight on the goods” which the learned Judge said was proved but not claimed in the writ. This cannot be justified. It is wrong for the learned trial Judge to take into consideration for the award of general damages, matters which he should have considered in his award of special damages.
The plaintiff in this case has been adequately compensated under the head of special damages in respect of the claim he put up under that head. He should not be given compensation for any item he never claimed. The appeal in respect of the award of damages succeeds only in regard to the award of general damages, that is, the sum of N800. We order that this award be set aside. Apart from this, the appeal fails and it is dismissed with N160 costs.
Other Citation: (1978) LCN/2098(SC)
