CORAM

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PARTIES

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DELMAS & ORS APPELLANTS

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SUNNY OSITEZ INTERNATIONAL LIMITED RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Respondent/Cross Appellant herein, a trading company, sometime in December 2007 placed an order for 1,400 cartons (70,000 pieces) of electrical goods (fan regulators) from its overseas supplier, Shenzhen Light Industry Ltd. in China. The goods were supplied on board the vessel “CMA CGM OUBANGUI”, which arrived at Berth 16, Apapa Sea Port on 22nd January, 2008. Unfortunately, the consignment was damaged because of flooding during the voyage. The 1st Respondent was the carrier of the goods on board the vessel, while the 2nd Respondent was the owner/charterer/manager/operator of the vessel. Both Respondents are shipping companies registered in France with offices worldwide, including Nigeria. The 3rd Respondent is also a shipping company and at all times material to the transaction was the agent and/or Nigerian subsidiary of the 1st and 2nd Respondents. Cargo surveyors appointed by the vessel owners’ Protection and Indemnity (P & I) correspondent, wrote to the 2nd Appellant/Cross Respondent on 22nd January, 2008, the same day the vessel berthed, informing them of the flooding. Thereafter the representatives of the Respondent and Petromarine Technical Services Ltd. carried out a joint inspection and a record was made of the damaged items in the Respondent’s containers. The inspection revealed that 605 cartons (30.250 pieces) of the consignment, made up of 358 cartons (SMC brand) and 247 cartons (SMT brand) of fan regulators were damaged and unfit for their intended purpose. Despite repeated demands, the Appellants failed to compensate the Respondent for the loss. Consequently, the Respondent instituted a suit before the Federal High Court, for damages arising from breach of contract. At the conclusion of the trial and after careful consideration of the respective written addresses, the learned trial Judge dismissed the suit on the ground that it was statute-barred. He held that the Bill of Lading in issue (Exhibit E) was a “Combined Transport” Bill of Lading and that by clause V (1) and VI (9) on the reverse side of Exhibit E and the provisions of Section 18 (1) of the Admiralty Jurisdiction Act Cap. A5 LFN 2004 (hereinafter referred to as AJA), the suit ought to have been commenced within 9 months of the accrual of the cause of action. That the cause of action accrued in February 2008 when the container was unstuffed and that the filing of the suit on 11th December 2008 was outside the time prescribed. The Respondent was dissatisfied with the decision and appealed to the lower Court, which allowed the appeal. The Court held that the Bill of Lading was not a Combined Transport Bill of Lading and therefore the Provisions of Clause VI (9) and Section 18 (1) of the AJA were not applicable. In dismissing the appeal, the Court made an order that the suit be remitted to the Chief Judge of the Federal High Court for assignment to another Judge for trial on the merits. The Appellants being dissatisfied with the entire decision, appealed to this Court whilst, the Respondents filed a cross appeal contending that the lower Court erred in remitting the case to the trial Court to be heard de novo before a different Judge and submitted that the Court ought to have exercised its powers under Section 15 of the Court of Appeal Act to rehear the case on the evidence on record and to make any order which the trial Court could have made.

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HELD

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Appeal Dismissed, Cross Appeal Dismissed

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ISSUES

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Whether the Bill of Lading is a Combined Transport Bill of Lading or a Port to Port Bill of Lading. Whether there was an error in the Bill of Lading.

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RATIONES DECIDENDI

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BILL OF LADING – DEFINITION AND CONTENT OF A BILL OF LADING

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“1. Bill of Lading is defined in Black’s Law Dictionary 9th edition at page 176 as follows:
A document acknowledging the receipt of goods by a carrier or by the shipper’s agent and the contract for the transportation of those goods; a document that indicates the receipt of the goods for shipment and that is issued by a person engaged in the business of transporting or forwarding goods.
“A bill of lading may be regarded in three several aspects (1) It is a receipt given by the master of a ship acknowledging that the goods specified in the bill have been put on board; (2) It is the document (that) contains the terms of the contract for the carriage of the goods agreed upon between the shipper of the goods and the shipowner (whose agent the master of the ship is); and (3) it is a ‘document of title’ to the goods, of which it is the symbol. It is by means of this document of title that the goods themselves may be dealt with by the owner of them while they are still on board ship and upon the high seas.” Williams R. Anson, Principles of the Law of Contract 380 (Arthur L. Corbin ed., 3d Am. Ed. 1919).”
2. Combined Transport Bill of Lading: Bill of Lading issued for containerized door to door shipments that have to use different ships and/or different means of transportation (aircraft, railcars, ships, trucks, etc.) from origin to destination. Unlike the case of through Bill of Lading, the carrier takes on full liability under a contract of carriage for the entire journey and over all modes of transportation. Also called combined bill of lading, combined transport Bill of Lading, intermodal Bill of Lading or multimodal Bill of Lading. (www.businessdictionary.com).
3. Port to Port Shipment defines a type of shipment which commences at the Port of Loading and ends at the Port of Discharge Port to Port shipment can be defined as a single mode sea freight transportation, which is started at the port of loading and ended at the port of discharge. (www.advancedontrade.com).
See also: Shipping Law 2nd Edition 2001 relied on by learned counsel for the respondent.
Thus, as held by this Court in: Nika Fishing Co. Ltd. Vs Lavina Corpn. (2008) 16 NWLR (Pt.1114) 509, a bill of lading contains the contractual terms between the parties and is binding on them and where there is no ambiguity in the bill of lading, effect must be given to the plain, clear and obvious meaning of the words used. It was also held in that case that parties to an agreement retain the commercial freedom to determine their own terms and no other person, not even the Court can determine the terms of the contract between them. The duty of the Court is to interpret the contract and give effect to the wishes of the parties as expressed in the contract document.”

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LIMITATION PERIOD – LIMITATION PERIOD UNDER SECTION 18(1) OF THE ADMIRALTY JURISDICTION ACT

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Section 18 (1) of the AJA provides:
“18 (1) A proceeding may be brought under this Act on a maritime claim or on a claim on a maritime lien or other charge, at any time before the end of
(a) the limitation period that would have been applicable to the claim if a proceeding on the claim had been brought otherwise than under this Act; or
(b) if no proceeding on the claim could have been so brought a period of 3 years after the cause of action arose.
(2) The provisions of Subsection (1) of this section shall not apply if a limitation period is fixed in relation to the claim by any enactment or law.”

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FACTS – DETERMINATION OF RELEVANT FACTS

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“In dealing with this issue, it is necessary to refer to Sections 7 and 9 of the Evidence Act, which provide: “7 Facts –
(a) necessary to explain or introduce a fact in issue or relevant facts;
(b) which support or rebut an inference suggested by a fact in issue or relevant fact;
(c) which establish the identity of anything or person whose identity is relevant; or
(d) which fix the time or place at which any fact in issue or relevant fact happened; or
(e) which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.
9. Facts, not otherwise relevant are relevant if –
(a) they are inconsistent with any fact or issue or relevant fact; and
(b) by themselves or in connection with other facts, they make the existence or non-existence of any fact in issue or relevant fact probable or improbable.”
Whether or not a fact is relevant would be determined by the surrounding circumstances. See: Okonji (alias Warder & Ors. Vs Njokanma & Ors. (1999) 12 SC (Pt. II) 150; Akingbade Vs Elemosho(1964) LPELR-25225 (SC) @ 5 – 6 E – D.”

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DETERMINATION OF AN APPEAL- POWER OF THE COURT OF APPEAL TO DETERMINE THE COURSE OF ACTION IN AN APPEAL

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“Section 15 of the Court of Appeal Act, which is in pari materia with Section 22 of the Supreme Court Act, provides:
“The Court of Appeal may, from time to time, make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal, and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before the final judgment in the appeal, and may make an interim order or grant any injunction which the Court below is authorised to make or grant and may direct any necessary Inquiries or accounts to be made or taken, and generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as Court of first instance and may re-hear the case in whole or in part or may remit it to the Court below for the purposes of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in the case of an appeal from the Court below, in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.”
It is pertinent to note that by the use of the word “may” in Section 15 of the Court of Appeal Act, as with Section 22 of the Supreme Court Act, the Court is given the discretion to decide which course of action to take having regard to the circumstances of the case. The Court may adopt the option of re-hearing the case as if it were the Court of first instance, it may also remit the case to the trial Court for re-hearing.”

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POWER OF THE COURT OF APPEAL -REQUIREMENTS FOR INVOKING SECTION 15 OF THE COURT OF APPEAL ACT

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“As rightly stated by both learned counsel, the requirements for invoking Section 15 of the Court of Appeal Act are:
a. The trial Court must have jurisdiction to hear and adjudicate on the case;
b. The real issue raised by the appellant’s claim must be capable of being distilled from the grounds of appeal;
c. All necessary materials for the consideration of the Court must be available for adjudication;
d. The need for expeditious disposal of the case to meet the ends of justice must be apparent.
See: Odedo Vs INEC (2008) 17 NWLR (Pt.117) 554 @ 536; Inakoju Vs Adeleke (2007) 1 SC (Pt.1); Adama & Anor. Vs Maigari & Anor. (2018) 4 SC (Pt.1) 45 @ 78 – 79; Obi Vs INEC (2007) 11 NWLR (Pt.1046) 560 @ 639 – 641. Requirement (b) above is that the real issue raised by the claim of the appellant at the lower Court or trial Court must be discernible from the grounds of appeal.”

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BILL OF LADING -MEANING OF BILL OF LADING

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“Some clarifications need be made as to the meaning of a Bill of Lading and these are:-
(1) It is a document of title with negotiable characteristics;
(2) It is a receipt for goods shipped on board a named carrying vessel;
(3) It can serve as a contract document.
I rely on the book, Maritime Law by Christopher Hill, 5th Edition (1998) page 192.
When however, a bill of lading refers to another document of contract such as a charter party then it is used as evidence of contract and when that happens the Bill of Lading serves as a contract document and contractual terms between the parties therein are binding on the parties which is the stance of the respondent in this case. See Nika Fishing Co. Ltd v Lavina Corporation (2008) All FWLR (Pt.437) 1 at 24.”

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CASES CITED

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None

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STATUTES REFERRED TO

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Admiralty Jurisdiction Act Cap. A5 LFN 2004|Court of Appeal Act|Evidence Act, 2011|Supreme Court Act|

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