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DELMAS & ORS v. SUNNY OSITEZ INTERNATIONAL LIMITED

(2019) LPELR-47387(SC)

In The Supreme Court of Nigeria

On Friday, the 12th day of April, 2019

SC.157/2014


Before Their Lordships

IBRAHIM TANKO MUHAMMAD Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

PAUL ADAMU GALUMJE Justice of The Supreme Court of Nigeria


Between

1. DELMAS
2. CMA CGM DELMAS
3. CMA CGM DELMAS NIGERIA LTD - Appellant(s)

AND

SUNNY OSITEZ INTERNATIONAL LTD - Respondent(s)


Other Citations

; ;


Summary

INTRODUCTION:
This appeal borders on Shipping and Admiralty Law.

FACTS:
This is an appeal against the decision of the Court of Appeal sitting in Lagos.

The Respondent/Cross Appellant, 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 got damaged as a result 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 were shipping companies registered in France with offices worldwide, including Nigeria. The 3rd respondent was 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 a joint inspection was carried out by the representatives of the Respondent and Petromarine Technical Services Ltd. 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 found to be damaged and unfit for their intended purpose. Despite repeated demands, the appellants failed to compensate the respondent for the loss.

Consequently suit No. FHC/L/CS/5547/2008 was instituted by the respondent on 11th December 2008. before the Federal High Court, Lagos. The parties exchanged pleadings and led evidence in support thereof through their respective witnesses. Documents were tendered and admitted in evidence without objection. 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, 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 significance of this finding was that in the case of a Port to Port Bill of Lading, a suit may be filed within 12 months of the accrual of the cause of action, in which case the respondent's suit would have been filed within time.

The respondent was dissatisfied with the decision and appealed to the Court of Appeal. On 18/7/2013, the Court of Appeal, in a considered judgment, 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 other than Olatoregun-Isola, J. for trial on the merits. Dissatisfied with the decision, the Appellants appealed to the Supreme Court. The Respondent also filed a cross-appeal.

ISSUES:
The Court determined the appeal on these issues couched as follows:

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

CROSS-APPEAL
"The lower Court erred in remitting the case to the trial Court to be heard de novo before a different Judge other than Olatoregun-Isola, J."

DECISION/HELD:
On the whole, the Court found no merit in the main appeal and cross-appeal and accordingly dismissed both.


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