Before Their Lordships
GEORGE BAPTIST AYODOLA COKER Justice of The Supreme Court of Nigeria
DANIEL O. IBEKWE Justice of The Supreme Court of Nigeria
AYO GABRIEL IRIKEFE Justice of The Supreme Court of Nigeria
Between
AND
K. CHELLARAMS & SON (NIGERIA) LTD Respondent
Alternative Citations
(1973) All N.L.R 165
(1973) 3 S.C. 41
…………………….A…………………….
“9. Notwithstanding the defendants’ cargo removal notice dated the 4th August, 1967 sent to the plaintiffs the defendants failed and/or neglected either to discharge the said goods or to deliver same to the plaintiffs.
10. The plaintiffs paid to the 1st defendants the agreed amount for their duties as bailees of the said goods to be by them taken care of and delivered safely to the plaintiffs within a reasonable time.”
“7. In further answer to paragraphs 6 and 11 of the amended statement of claim, the 2nd defendants state that failure to deliver the 15 bales was occasioned by the culpable delay on the part of the plaintiffs to take reasonable steps to remove their consignment from the premises of the 1st defendants in spite of the ‘Cargo Removal Notice’ served on the plaintiffs on or about the 4th August, 1967 until after the Midwest including Warri was invaded and occupied by the Nigerian rebels. The defendants will at the trial found on the ‘Cargo Removal Notice’ and ‘Bill of Entry’ showing that the plaintiffs paid the necessary custom duties only on the 13th October, 1967.”
…………………….B…………………….
“10. The defendants further state that the rebels carried out heavy looting of property in the premises of the 1st defendants and indeed all over the Midwest and that the 15 bales of the Real Madras were among many other things looted from the premises of the 1st defendants in Warri by the rebels.”
The action then went to trial and the parties called witnesses. The witness for the plaintiffs described the 1st defendant, i.e. Holts Transport Ltd., as agents of the 2nd defendant (i.e. Elder Dempster Agencies Ltd.) in Warri and stated, inter alia, that on the 4th August, 1967 the plaintiffs were advised by the 1st defendants, now the appellants before us, of the arrival of the goods by the ship S.S. “Oti” on the 3rd August, 1967 and that thereafter he paid a number of visits to the 1st defendants and that after repeated visits by him to the 1st defendants only 24 bales were delivered to him on the 13th October, 1967. He had earlier on, about the 26th August, 1967 paid the customs duties on the 24 bales which were found and according to him the information he received from the 1st defendants was that the goods were still inside the lighters. The witness for the defence stated in the court of his evidence that rebel soldiers occupied the whole of Warri as from the 9th August, 1967 took possession of the 1st defendants’ beaches and their business came to a standstill thereafter. He stated further thus-
“We could not operate. They started to drive us out right from that date. When the rebels were too hard on us we took a policy decision. On 24th August, 1967 we closed down the business and we sent the staff away. They the rebels forced us to give them the addresses of everybody and said they do not want any body in the premises any more and that if they want any one they would send for him. We reopened the business on 6th October, 1967 when we the staff came back.”
He confirmed the storage of the goods in the lighters of the 1st defendants and testified that to the best of his knowledge the plaintiffs did not present the necessary documents to enable them to take delivery of the goods before the business of the 1st defendants closed down on the 24th August, 1967 and that when they resumed duty in October, 1967 they discovered the lighter No. 57 which carried the remaining 15 bales of cloth “far away into the Escravos Creek already broken into and all the goods therein removed”. He admitted in cross-examination that the 24 bales delivered to the plaintiffs were collected from the shed belonging to the 1st defendants, the goods having been discharged to shed No.1 at the time when the lighter was about to sink. He also admitted that during the period of occupation by the rebel army, he delivered “several cargoes that arrived by the S.S.”Oti” and that at any rate he made a delivery of cargo (other cargo) to the plaintiffs themselves during the same period.”
In a reserved judgment, the learned trial judge, Obaseki J., concluded that the contract of carriage by sea had terminated on the arrival of the goods in Warri and that the two defendants had by clause 10 of the conditions in the bill of lading exculpated themselves from liability for any loss as that envisaged by the case of the 15 bales that were missing. He dismissed the action against the 2nd defendants and gave judgment for the plaintiffs against the 1st defendants for damages totalling ‘a34, 159:0:4d. (or N8,3184.4) with costs for their negligence as bailees. Hence this appeal.
As stated before, the 1st defendants are the present appellants before us. On their behalf it was contended in this Court, firstly, that there was no contractual relationship between the 1st defendants and the respondents on which an action for breach of contract could be founded and, secondly, that the 1st defendants were not paid bailees or indeed bailees at all and, lastly, that even if they were bailees there was no proof that they were negligent in the care and keeping of the 15 bales of Real Madras handkerchiefs. On the other hand, learned counsel for the respondents submitted that the case against the 1st defendants was in tort; that they were indeed bailees even if it was not proved that they were paid and that there was proof as found by the learned trial judge of negligence on their part in at the wnt and the endorsement on it. The claim of the respondents is for “damages sustained by the loss of 15 bales of Real Madras handkerchiefs which were entrusted to the defendants as bailees and/or carriers …”. The writ also has endorsed on it an averment that the defendants had “negligently failed and neglected to deliver to the plaintiffs, despite repeated demands” the goods which are the subject-matter of the action. In the same way, the statement of claim makes it clear that the contract of carriage was made between the respondents and the 2nd defendants, that is Elder Dempster Agencies Ltd., but that at the actual time of the loss, quite apart from the evidence, the appellants were the agents of Elder Dempster Agencies Ltd. in Warri and the goods were in the custody of the appellants for their safe-keeping and eventual delivery to the respondents.
…………………….C…………………….
It was common ground that on the 4th August, 1967, a notice, admitted in evidence as (exhibit G), was sent by the appellants to the respondents. (exhibit G) states as follows:
“HOLT’S TRANSPORT LIMITED, WARRI
Ref. No. 1 Date: 4-8-67
Cargo Removal Notice
We beg to advise you that the consignment of general cargo landed by us ex the S.S. “Oti of 3-8-67” and now lying in the Holt’s Wharf is ready for removal.
If the goods are not claimed and delivery taken within the time allowed by the Customs Regulations no claims for shortage, damage or any loss whatsoever will be admitted.
Kindly arrange to take immediate delivery and oblige.
for: HOLT’S TRANSPORT LIMITED
(Sgd.) for Traffic Manager
In the course of his judgment, the learned trial judge dealt at length with the contract of carriage by sea and the bill of lading, (exhibit A) He concluded, and that was generally accepted to be so, that the carriage by sea had terminated by delivery of the goods to the port of Warri; and with respect to the provisions of the bill of lading concerning the goods after they were off-loaded, the learned trial judge observed thus;
“The 2nd defendants, from the provisions of clause 10 above, have contracted themselves the company out of liability. The 1st defendant is also exempted from liability as agent for 2nd defendants:”
It is easy, therefore, to see how the learned trial judge dealt with the inception and the termination of the contractual relationship between the respondents and the Elder Dempster Agencies Ltd. He then went on to observe thus;
“However the 1st defendant as bailees for plaintiff is under a duty of care to obviate loss or damage.”
We think it is clear that the learned trial judge dealt with the liability if any of the appellants in tort and not in contract. In Brabant & Co. v. Thomas Mulhall King [1895] A.C. 632 at p. 640, Lord Watson, delivering the judgment of the Privy Council, described the nature of the liability in tort of bailees thus;
“The real issues involved in the pleadings of the parties, and in the evidence which was led by them before the jury, appear to their Lordships to be exceedingly simple; although they were complicated, if not obscured, by the pleas of inevitable accident, and of acceptance. of risk by the company, which were advanced by the respondent, as well as by the shape in which the case for the appellant company was presented for the consideration of the Jury.
…………………….D…………………….
Their Lordships can see no reason to doubt that the relation in which the Government stood to the appellant company was simply that of bailees for hire. They were therefore under a legal obligation to exercise the same degree of care, towards the preservation of the goods entrusted to them from injury, which might reasonably be expected from a skilled storekeeper, acquainted with the risks to be apprehended either from the character of the storehouse itself or of its locality; and that obligation included, not only the duty of taking all reasonable precautions to obviate these risks, but the duty of taking all proper measures for the protection of the goods when such risks were imminent or had actually occurred.”
The liability of the bailee may also rest on an express contract between him and the owner but even if that is so, there is the collateral liability in tort for negligence which arises from the breach of a legal duty owed by the one to the other in the circumstances and damages resulting therefrom. Such was the position in the case of Turner v. Stallibrass [1898] 1 Q.B. 56 where at p. 59 Collins, L.J. explained the legal position where a tortious liability exists alongside the contractual relationship which the parties created by their own act:” I am of the same opinion. I think some confusion may possibly arise from the expression of the rule on this subject as being that the test is whether the plaintiff is obliged, in order to maintain his action, to rely on a contract. The relation of bailor and bailee must arise out of some agreement of the minds of the parties to it; but that agreement of minds is not the contract contemplated by that mode of expressing the rule to which I refer. Such an agreement of minds is presupposed in the case of any relation which brings about the common law liability of a bailee to his bailor. Where such a relation is established, the result of the cases appears to be that, if the plaintiff can maintain his action by shewing the breach of a duty arising at common law out of that relation, he is not obliged to rely on a contract within the meaning of the rule; but if his cause of action is that the defendant ought to have done something, or taken some precaution, which would not be embraced by the common law liability arising out of the relation of bailor and bailee, then he is obliged to rely on a contract within the meaning of the rule.”
See also Jarvis v. May, Davies, Smith, Vandervell & Co. [1936] 1 K.B. 399 (per Greer, L.J. at p. 405). In Jackson v. Mayfair Window Cleaning Co. Ltd. [1952] 1 All E.R. 215 and concerning the same issue, Barry, J. observed at p. 217 thus:
“That there was a contract between the plaintiff and the first defendants is, of course, not in dispute. Moreover, the acts complained of might well have been pleaded as a breach of that contract. What I have to ask myself, however, is whether, in essence, the plaintiff must rely on that contract in order to establish her claim or whether she can properly treat the contract as a mere matter of history, explaining the presence of the defendants’ workman in her flat, and establish a breach of duty independent of any obligations undertaken by the defendants to her under that contract. In my judgment, the present claim falls within the latter category. The plaintiff does not complain of mere nonfeasance, nor does she say that the defendants failed to clean her chandelier at the time or in the manner stipulated by their contract. Her case is based on a broader duty, independent of any contractual obligation undertaken by the defendants.”
We think that the learned trial judge was right in considering the liability of the appellants as bailees in tort and indeed in arriving at the conclusion on the evidence before him that the appellants were paid bailees. Learned counsel on behalf of the appellants submitted that there was no evidence that the appellants were paid. Indeed, there was no direct evidence of any particular amount having been paid by the respondents to the appellants for keeping the goods inside their shed. But paragraph 2 of the plaintiff’s amended statement of claim, which is admitted by the defence, reads as follows:
“2. The 1st defendants are a limited liability company with their registered office at Warri. They carry on business, among others, as River Fleet Owners, Steamship Agents, Stevedores, Marine Engineers and so and so on.”
…………………….E…………………….
It is apparent from this that the goods were received by the appellants into their shed for safe-keeping in the course of their duties and the notice, (exhibit G), was particularly confirmatory of this act. In those circumstances, we think it is idle to contend that the appellants were merely gratuitous bailees and were not paid. Even if the appellants were gratuitous bailees they still had a duty of care and gross neglect on their part would be the basis of an action for damages in tort against them. That type of bailment is the sixth type described by Chief Justice Holt in the leading case of Coggs v. Bernad (1703) 2 Ld. Raymond 909 at p. 913 (or 92 E.R. 109) as a mandatum. Concerning the liability of a bailee in this case, Holt C.J. observed at p. 919 of the report thus:-
“In Bracton, lib. 3, 100, it is called mandatum. It is an obligation which arises ex mandato. It is what we call in English an acting by commission. And if a man acts by commission for another gratis, and in the executing his commission behaves himself negligently, he is answerable. Vin-(919)-nius in his Commentaries upon Justinian, lib. 3, tit. 27, 684, defines mandatum to be contractus quo aliquid gratuito gerendum committitur et accipitur. This undertaking obliges the undertaker to a diligent management. Bracton ubi supra says, contrahitur etiam obligatio non solum scripto et verbis, sed et consensu, sicut in contractibus bonae fidei; ut in emptionibus, venditionbus, locationibus, conductionibus,societatibus, et mandatis. I don’t find this word in any other author of our law, besides in this place in Bracton, which is a full authority, if it be not thought too old. But it is supported by good reason and authority.”
If then there is a duty of care on the appellants, it follows that the question of their liability for negligence must be resolved on their failure or otherwise to discharge that duty. The learned trial judge was at pains to consider the evidence in considerable detail. He found, and there can be no doubt that he was right, that the defence of the appellants to the charge of negligence was their inability to accede to the demands of the respondents to deliver the goods at the time when they presented their documents because of rebel occupation of Warri and the seizure and occupation of their own premises by rebel soldiers. In connection with this point, however, the learned trial judge stated in his judgment as follows:
“I believe and find as a fact that plaintiffs’ 1st witness made repeated efforts to take delivery of the consignment but 1st defendant failed or neglected to deliver the goods or any of them before 13-10-67. I do not believe that 1st defendant could not have delivered the consignment to plaintiffs at any time between 26th August and 22nd September, 1967 when the rebel soldiers occupied Warri. I am satisfied that the entries in respect of the fifteen bales were passed on 26th August, 1967 when the customs duty charged was paid. The payment of the custom duty is sufficient evidence to indicate the readiness and willingness of the plaintiffs to take delivery of the goods.”
He had earlier on directed himself that in case of loss or damage to goods bailed, the onus is on the bailee to show that the loss or damage was not attributable to his own lack of care. As Scrutton, L.J. has put it in Coldman v. Hill [1919] 1 K.B. 443 at p. 454:
“The Divisional Court have, however, held that the burden of proof that the negligence caused the loss is on the plaintiff, and that, as it is pure guesswork whether inquiries or search would have recovered the beasts or not, he fails to sustain the burden of proof he is under. I am satisfied that this view of the burden of proof is erroneous where a bailee is sued in detinue for refusal to return goods on demand, and answers that he cannot return them because they are lost or stolen.”
Before us, this finding, based on this direction, had been attacked by learned counsel for the appellants but we are satisfied that the attack was not justified. The evidence given by the defence witnesses is to the effect that when the rebel soldiers were pressing and were about to take over their premises the company took a policy decision and on the 24th August, 1967 they closed down their business and sent their staff away. That was all there was to it and there was not a shred of evidence about their doing anything for the protection of the goods or properties in their possession let alone any evidence about the actual physical state of things at the port where the goods were kept. There was evidence from the defence that some cargoes were delivered by their 2nd witness during the period of rebel occupation and there was no evidence as to why, in spite of the admitted visits of the respondents to the appellants’ premises to demand the clearance of the goods, this particular cargo was not delivered to the respondents whilst at least one other cargo belonging to the respondents was delivered. It was argued on behalf of the appellants that during this time of the occupation it was not possible to get into the area of the port and that looting and stealing were widespread; indeed it was argued as if this was axiomatic.
…………………….F…………………….
It is not, and a state of belligerence is not, suo ipso, a sufficient answer to a failure to discharge a private obligation or duty. The rebel occupation of Warri, at the time indicated, may be and is a matter of which the courts should take judicial notice but the defence put forward by the appellants is not a necessary incident of that situation. No wonder the learned trial judge observed of the defence in the course of his judgment as follows:
“The defence evidence is that they abandoned care over the lighter containing the goods and defendants knew nothing about the goods till October 1967”.
It is also pertinent to observe that the goods were all left lying in the lighters of the appellants throughout the entire period of the occupation whilst of course several other cargoes were being delivered by the same appellants from their sheds and clearly also the 24 bales that were delivered were off-loaded from the lighter into the shed because the lighter was then sinking. If only the appellants had taken a decision about the safety of the goods in their care, if only they had given evidence before the court of such a decision and if only they had described to the court a situation in which, owing to the prevalence of hostility, it was impossible for them to do any more than what they had done, the resultant situation may have been otherwise as there would have been some evidence upon which the court could have come to a conclusion that they were guiltless. They did none of these things and we are in no doubt whatsoever that the learned trial judge was right in taking into consideration only the matters pleaded and given in evidence before him and in the conclusion at which he had arrived on such consideration.
In the end, all the grounds of appeal argued on behalf of the appellants fail and the appeal also fails and it is dismissed. The appellants will pay the respondents the costs of the appeal fixed at N90.
Appeal dismissed.
Appearances
Fred Egbe (A. O. Akpedeye with him) For Appellant
AND
K. Sofola For Respondent