CORAM
OBASEKI, JUSTICE SUPREME COURT
OPUTA, JUSTICE SUPREME COURT
NNAMANI, JUSTICE SUPREME COURT
BELGORE, JUSTICE SUPREME COURT
KAWU, JUSTICE SUPREME COURT
PARTIES
NARUMAL & SONS NIGERIA LTD
APPELLANTS
NIGER BENUE TRANSPORT COMPANY LTD
RESPONDENTS
AREA(S) OF LAW
APPEAL / EXEMPTION CLAUSSES/ LAW OF CONTRACT /PRACTICE AND PROCEDURE/ SHIPPING
SUMMARY OF FACTS
The Barge B6 of the respondent’s ship was damaged due to a collision at Cosac Jetty long time after departure resulting in a leakage that damaged the appellant’s cargo. There was an exemption clause in the charterparty agreement which granted the respondents escape from liability for damage to goods carried on the ship.
HELD
The court held that the evidence at trial proved that the respondent’s ship was seaworthy and that the respondent was protected from liability by the exemption clause.
ISSUES
1. Whether the Court of Appeal can overturn the finding of the trial court from which there has been no appeal?
2. Whether it is open to the Court of Appeal upon the evidence placed before it to find that Barge ‘B6’ was seaworthy?
3. Whether a party in fundamental breach of a term of warranty can rely upon an exclusion clause in a contract?”
RATIONES DECIDENDI
ATTITUDE OF COURT OF APPEAL TO THE FINDINGS OF A TRIAL COURT
A Court of Appeal will not normally interfere with the findings of fact of a trial Court unless such findings are perverse. If the findings are based on the credibility of witnesses, a court of trial which had the advantage of seeing the witnesses and watching their demeanour is in a dominant position. If, however, the complaint is as to non-evaluation or improper evaluation of the evidence tendered before the trial Court, the Court of Appeal is in as good a position as the trial Court- Nnamani J.S.C.
WHEN AND HOW THE SEAWORTHINESS OF A SHIP IS DETERMINED
SEA-WORTHINESS OF A VESSEL-WHEN TO VERIFY SAME.
The time to judge the sea-worthiness of a vessel is at the time of commencement of the voyage and not when the ship begins to encounter the perils of the sea as submitted by the learned Senior Advocate. Seaworthiness for our purpose relates to the suitability of the ship in terms of crew, equipment (and even carrying the particular cargo) for the journey being undertaken – Nnamani J.S.C.
CASES CITED
1. Woluchem v Cudi (1981) 5 S.C. 319 326;
2. Fatoyinbo & Ors. V Williams (1956) 1 F.S.C. 87;
3. Kodilinye v Mbanefo Odu 2 W. A.C. A. 336 at 338;
4. Ramonu Atolagbe v Olayemi Shorun (1985) 1 N.W.L.R. part 2 360;
5. Mogaji v Odofin (1978) 4 S.C. 91;
6. Obisanya v Nwoko (1974) 6 S.C. 69;
7. Okuoja v Ishola (1982) 7 S.C. 314;
8. Akpapuna vs Nzeka (1983)2S.C.N.L.R. 1Parker Ltd. v Cotter (1942-43) 66 C.L.R 624
9. Main Steamship Co. Ltd. v fate and Lyle Ltd. (1936) 155 L.T. 177
10. Cunard S.S. Co. Ltd. v Buerger (1926) All E.R. Rep. 103, 108; (1927) A.C. 1 at 13;
11. London and North Western Railway Co. v Neilson (1922) All E.R. Rep. 395,400,1922 A.C. 263, 272
12. Photo Production Ltd. v Securicor Transport Ltd. (1980) 1 All E.R. 556,; (1980) 2 W.L.R. 283
13. Akinsanya v U.B.A. (1986) 4 N. W.L.R. (part 35) 273,313-314;
14. Attorney- General of Bendel State v U.B.A. Ltd. (1986) 4 N.W.L.R. (part 37) 547, 559.
15. Sussie Atlantique Societe D’Armement Maritime S.A. v. N. V. Rotterdamsche Kollen Centrale (1966) 2 All E.R. 61
STATUTES REFERRED TO
Not Available