(1) Sule O. Gbadamosi
(2) Akinola Maja
(3) Rabiou Allison
Trading as IKORODU CERAMIC INDUSTRIES (DEFENDANTS/APPELLANTS)
NIGERIAN PORTS AUTHORITY (PLAINTIFFS/RESPONDENTS)
(1964) All N.L.R. 567
Division: High Court, Lagos
Date of Judgment: 1st December, 1964
Case Number: LD/72A/64
Before: Taylor, C.J.
The respondents a Statutory Corporation, obtained judgment, against the defendants/appellants, for the sum of £489. 1. 7d being balance of money, payable by the defendants to the Corporation as storage and handling charges, in respect of unclaimed goods belonging to the defendants, amounting in all to £525. 1. 7d.
At the hearing, evidence given on behalf of the Corporation show that the goods remained in the wharfage warehouse room for 164 days; that a letter was sent to the defendants in respect of the goods but they ignored it; that in exercise of its powers of sale under section 74 of the Ports Act, the goods were sold for £36 to recover part of the charges due; the defendants did not offer any evidence to rebut these allegations; whereupon the magistrate found the plaintiffs' case proved because it is unchallenged.
The defendants appealed against the judgment contending inter alia that the plaintiffs' case was not proved strictly as required by law that the magistrate erred in holding that the plaintiffs' case was not challenged. It became clear on appeal that the Corporation, whilst relying on its powers under section 74 of the Ports Act, did not act strictly in accordance with the requirements of the said section and the record of trial is completely silent on the point.
(1) The appellate court has jurisdiction, under section 32 of the High Court of Lagos Act, Cap. 80, in the interests of justice, to order a new trial where the proceedings of the lower Court are unsatisfactorily conducted as were the circumstances in this case.
(2) In the absence of a provision similar to that dealing with undefended cases, a plaintiff whose claim is unchallenged must prove his case strictly no matter how weak the defence may be.
(3) Where a claim, before the magistrate, is based on Regulations of a Statute, the magistrate ought, as a matter of guide, to require the parties to set down their various claims and the necessary Statutes and Regulations under which the claim is brought, before the matter is set down for hearing.
Appeal allowed: Judgment set aside: New trial ordered.
Acts referred to:-
Ports Act, Cap. 155, sections 70(a); 74; 82(a).
High Court of Lagos Act, Cap. 80, section 32.
Olakunrin, for the Appellants.
Miss Finnih, for the Respondents.
Taylor, C.J. of Lagos:-The plaintiff/respondent sued the defendants/appellants who trade under the name of Ikorodu Ceramic Industries for the sum of £489. 1. 7d. "being money payable by the defendants to the plaintiffs for the wharfage warehouse room."
The learned Chief Magistrate found the plaintiff's case proved and gave judgment in the plaintiff's favour. The defendants have appealed against this judgment and have urged grounds of appeal which contend that:-
1. The evidence of the only witness called by the plaintiff was hearsay.
2. The plaintiff's case was not proved with the strictness required by law, and
3. The trial Chief Magistrate erred in holding that the plaintiff's case was not challenged.
In reply, Miss Finnih argued that exhibit "A" the "delivery document" spoke for itself and that on its face the shipping authorities released the goods to the appellants, that a letter was sent to the appellant in respect of these goods but they chose to ignore it; finally that the Managing Director of the Company should have been called to give evidence.
The plaintiff/authority is a creation of Statute and its powers are derived from Statute and regulations made thereunder. Thus it is provided in section 82(a) of the Ports Act Cap. 155 Vol. 5 of the 1958 Laws of the Federation of Nigeria and Lagos that:-
"Subject to the provisions of this Part, the Authority may make regulations:
(a) for the levying of dues and rates for the purposes of sections 61, 67 and 70."
Section 70(a) is the relevant one for the purposes of this case on appeal, and it provides that:-
"Subject to the provisions of this Part, the Authority may levy rates as the Authority may by regulation made under section 82 prescribe for the use of any works or appliances provided, or any service to be performed in respect of any ships or goods by the Authority, in pursuance of the powers conferred by this Ordinance and, without prejudice to the generality of the foregoing, for any of the following:-
(a) the landing, shipping, wharfage, cranage, storage, carriage or demurrage of goods."
Now, throughout the proceedings there was no reference either in the evidence, or addresses or the judgment of the trial Magistrate to the relevant regulations dealing with two major aspects of the case for the plaintiff. It is good law, as contended by Mr Olakunrin for the appellants, that in the absence of a provision similar to that dealing with undefended cases, a plaintiff still has to prove his case no matter how weak the defence may be. The first aspect of the plaintiff's case is as to the rate of charges, for the plaintiff's witness said thus:-
"Storage charges started 27/6/61 to 9/1/62 as claimed. There is a total of 164 days and the charges amounted to £516, 9. 0d. The weight was 10 tons, 2 qrs., 1 cwt., and rent charges is 1/6d. per ton or part thereof for the first 6 days, 3/- per ton or part thereof for the next six days, and 6/- per ton or part thereof until the consignment is cleared. Handling charges payable on the consignment to the Ports Authority at 17/- per ton give £8. 12. 7d total storage charges and handling charges. £525. 1. 7d."
The second aspect of the plaintiff's case is their powers of sale of such goods, for the plaintiff's witness deposed that:-
"There is a limit of 36 days during which the Authority is allowed to keep goods. Sale can be affected after that period."
It was surely essential to the plaintiff's success in the action now on appeal that its charges and its power of sale after 36 days be shown to be derived from the regulations under the Act or from the Act itself. I have been unable to find in the Ports Act any other relevant provision dealing with the powers of sale vested in the Authority than section 74 which provides as follows:-
"If the rates payable to the Authority in respect of any goods are not paid, or if the lien for freight, primage, general average or charges, when such notice as aforesaid has been given, is not discharged, the Authority may, and in the latter event, if required by or on behalf of the person claiming such lien for freight, primage, general average or charges, shall, at the expiration of 19 days from the time when the goods were placed in their custody, or if the goods are of a perishable nature at such earlier period, not being less than 24 hours after the landing of the goods, as they think fit, sell by public auction the said goods or so much as is necessary to satisfy the duty, expenses, rates and other claims hereinafter directed to be paid out of the proceeds of such sale."
Stopping there for one moment, if this be the section under which the plaintiff acted in selling the goods, then their action in selling after 36 days has not been justified, for the provision here is 90 days inasmuch as the goods are not perishable goods. Further the right of sale must be one exercisable through a Public Auction. The proceedings are silent on all these points. Miss Finnih in her address in the court below is quoted as saying that:-
"Refers to section 74 of the Ports Authority Act to show what powers the Statute gave to the Authority."
It is obvious from the above quotation that section 74 does not support the action of the Authority. It is further provided in section 74 subsection (2) that:-
"Before making such sale ten day's notice of the same shall be given by publication thereof in the Gazette, unless the goods are of so perishable a nature as, in the opinion of the Authority, to render their immediate sale necessary or advisable, in which event such notice shall be given as the urgency of the case admits."
Again the record is completely silent on this point. Finally I have referred to the evidence of the Plaintiff's witness as to the relevant charges. If the relevant regulations relied on are those contained in the Nigerian Ports Authority (Dues and Rates Regulations) as amended Cap. 155, Vol. IX Laws of the Federation of Nigeria and Lagos then again the plaintiff's evidence as to charges made is not borne out by these regulations. Part III in the Third Schedule deals with Storage Rates and provides that:-
"For imported goods not removed from a transit shed or port warehouse of the Authority within the free storage period, for the six working days following the expiry of the free storage period per day
£0 3 0
For the next following six working days per day £0 6 0
Thereafter until removed, for each working day, per day £0 12 0
Another unsatisfactory aspect of the hearing in the court below is that there is no evidence why goods which were eventually sold for £36, and a right to the sale of which arose after 90 days should be stored for 164 before sale with the result that the charges and dues exceed the eventual sale price by more than 17 times.
I have time and time again had occasion to draw the attention of Counsel to the unsatisfactory mode of conducting cases in the court below. This is a glaring example not only on the part of the plaintiff but defendants as well. It is for this reason that I am of the view that the interests of justice will be met by an order for a re-trial. The Appeal is therefore allowed, and the judgment and order of the court below is hereby set aside and in exercise of the powers vested in me by section 32(a) of the High Court of Lagos Act I order a new trial. The parties will bear their costs of the abortive trial and of the Appeal.
I should like it to be on record, more as a guide to the Magistrate, that it is my view that this is a case in which the parties ought to be made to set down their various claims and defences and the necessary Statutes and Regulations under which the plaintiff acted, before the matter is set down for hearing.