SUPREME COURT OF NIGERIA
CITATION: (1969) ANLR 108
COKER JUSTICE SUPREME COURT
MADRIKAN JUSTICE, SUPREME COURT
FATAYI-WILLIAMS JUSTICE, SUPREME COURT
CO-OPERATIVE SUPPLY ASSOCIATION LTD PLANTIFFS
1. INTERCOTRA LTD. 1ST DEFENDANTS/APPELLANTS PLAINTIFFS/RESPONDENT
2. DAVID NKANA
3. PATRICK ANELE
4. ADOLPHUS ENWEREZOR
5. FRANCIS IHENACHO
IN RE INTERCOTRA LIMITED CO-OPERATIVE SUPPLY ASSOCIATION LTD
MADARIKAN, J.S.C.:-The respondents in this appeal were the plaintiffs in the Lagos High Court in Suit No. LD/159/63 and the appellants were the 1st defendants to the action. As expressed on their writ, the plaintiffs claimed against the 1st defendants and 4 others:
jointly and severally the sum of £2,000 (Two thousand pounds) as special and general damages as follows:-
As against the first defendant for a breach of contract to carry and deliver 20 cartons of Consulate menthol cigarettes to the plaintiff in Lagos sometime in 1962 alternatively for damages for negligence or breach of duty by the defendant as carriers in and about the carriage of the aforesaid goods.
As against the 2nd to the 5th defendants for negligence in handling alternatively stealing the aforesaid 20 cartons of cigarettes in Lagos sometime in 1962.
PARTICULARS OF DAMAGES
Special (a) Cost of Cigarettes £ 351. 9s.9d.
(b) Customs duties 1250. Os.0d.
(c) Loss of profit 40. Os.0d.
In the lower court, the plaintiffs were granted leave to discontinue the case against the 2nd to 5th defendants which was duly struck out. Thereafter the case proceeded to trial against the 1st defendants only.
Pleadings were ordered and duly delivered. In paragraphs 2, 4, 5, 6 and 12 of their statements of claim, the plaintiffs averred as follows:-
2. The 1st defendants are common carriers. They also own a bonded warehouse at Apapa.
4. On the 16th April, 1960 the 1st defendants by letter to which a tariff was attached agreed to stock the plaintiffs then consignment of cigarettes in their warehouse. The 1st defendants continued to do with subsequent consignments. The plaintiffs took delivery at its pleasure.
5. On 15th August, 1962, the 1st defendant wrote to the plaintiffs that 20 cartons of plaintiffs cigarettes were missing in transit between the Apapa Wharf and their stores. To the letter was attached some new conditions of service.
6. That the loss occurred after the goods have been taken delivery of from the customs on behalf of the plaintiffs and whilst the 2nd defendants were carrying the goods as common carriers.
12. The first defendants in breach of agreement to deliver the goods or due to their negligence in the handling of the goods failed to deliver them to the plaintiffs upon request aforesaid.
The 1st defendants for their part pleaded in paragraphs 2, 5, 7 and 10 of their statement of defence as follows:-
2. As regards paragraph 2 of the statement of claim, the 1st defendants admits that it owns a bonded warehouse at Apapa but denies being a common carrier.
5. On the 15th day of August, 1962, the 1st defendants in writing advised the plaintiffs of the loss of 20 cartons of the plaintiffs cigarettes whilst in transit from Apapa Wharf to the 1st defendants stores/bonded warehouse.
7. Between 1960 and 1961, particularly by a letter dated 1st December 1961, the 1st defendants communicated to the plaintiffs the Conditions under which Intercotra Limited carry out clearing, warehousing and for-warding business. The said conditions are attached.
10. In the alternative, should the 1st defendants be subject to any liability to the plaintiffs in respect of the aforesaid cigarettes the 1st defendants will contend that any such liability, if at all, is limited to condition 12 in attachure A.
At the trial, it was common ground that on the 8th of August, 1962, the 1st defendants cleared 285 cartons of consulate menthol cigarettes for the plaintiffs from the Custom Wharf, Apapa, which they undertook to store in their warehouse at Apapa and that whilst the cigarettes were being trans-ported from the Customs Wharf to the warehouse, in the 1st defendants vehicle No. LF483 driven by a driver in the employment of the 1st defendants 20 cartons disappeared.
The plaintiffs case was that as common carriers the 1st defendants were insurers for the safe carriage of the goods and were therefore liable for the loss. In the alternative, the plaintiffs claimed damages for loss of the goods due to negligence or breach of duty on the part of the 1st defendants
The defences to the action were that the 1st defendants were bonded warehousemen and not common carriers, that their relationship with the plaintiffs was governed by certain trade conditions (exhibit Al) copies of which they forwarded to the plaintiffs in 1960, December, 1961 and on the 15th of August, 1962, and that they had limited their risk, in any event, by clauses 11 to 13 of exhibit A1.
On the 30th of May, 1966, Ikpeazu J. entered judgment against the 1st defendants in the sum of £351.9s.0d. being value of the missing goods and £100 as general damages together with 100 guineas costs, and it is against that judgment that the 1st defendants have now appealed.
In his judgment, the learned trial judge said:-
I do not find any difficulty upon the evidence in coming to the conclusion that the defendant company are common carriers. As such they are liable under the law for the safety of the goods entrusted to them except for loss or injury arising from Act of God; from war, fault of the consignor or inherent vice in the goods themselves.
This finding was attacked by learned counsel for the 1st defendants, Mr. M. O. Oseni, in the 1st ground of appeal which reads:-
The learned trial judge misdirected himself when he held that the appellants are common carriers having regard to the evidence before him.
Mr. Oseni argued that the main business of the 1st defendants is that of warehousemen and that it was to facilitate their work as warehousemen that they undertook to transport the goods of the plaintiffs from the Customs Wharf to their warehouse at Apapa. He submitted that in those circum-stances, it was wrong for the judge to hold that they are common carriers.
In Consolidated Tea and Lands Company and others v. Olivers Wharf  2 K. B. 395, the issue whether the defendants undertook the liability of common carvers with respect to the plaintiffs goods was tried as a preliminary question and it was held that wharfingers who, as incidental to their business as wharfingers, transport goods for their customers by lighter from the importing ships to their warehouse, but do not hold themselves out as ready to carry goods for any other persons, are not in respect of that transport subject to the common law liability of common carriers, but are liable only for negligence.
Upon the facts of the instant case, it appears to us to be manifest that the 1st defendants are carrying on business as warehousemen; that the transportation of goods from the Customs Wharf to their warehouse is purely ancillary and incidental to their business, and that they do not profess to the public their readiness to carry for anyone who wishes to engage their services and is prepared to pay their charges. In our view, the judge was clear-y in error in coming to the conclusion that the 1st defendants are common carriers. That however is not the end of the matter, for the case of the plain-tiffs postulated that the defendants were either common carriers or bailees or both.
Mr. Oseni has rightly in our view conceded that the 1st defendants were bailees from whose custody goods had disappeared. As bailees, in order to escape liability the onus is on them to establish that they took reasonable and proper care for the due security and proper delivery of the goods and that the loss was not due to negligence on their part. As stated earlier, part of the judgment of the lower court proceeded on the erroneous basis that the 1st defendants are common carriers. We had stated before that it was agreed by both parties that the defendants were at the least bailees of the cigarettes. The learned trial judge analysed the facts given in evidence, but nonetheless, the only evidence on how the loss occurred was given by the only witness for the 1st defendants whose evidence on the point stands uncontradicted. He said:-
We were disturbed by the loss. We questioned the driver vigorously. He said that 285 were in fact loaded, that it took him ten minutes from the quays to the warehouse gate where he stood the lorry and waited for another (sic) minutes as the workers were on break. It was a mystery to him how the loss occurred. We were not impressed by his account and that was why he was handed to the Police and placed under arrest.
It is clear beyond argument that the 1st defendants failed to prove that the loss of goods was not due to their negligence or that of their servant.
The other grounds of appeal relating to exhibit A1 which contains trade conditions were argued together by Mr. Oseni. Exhibit 13 is a letter dated the 16th of April, 1960, addressed to the plaintiffs by the 1st defendants, and bearing a date stamp which shows that it was received by the plaintiffs on the 19th of April, 1960. A tariff setting out rates of charges is attached to exhibit 13 and at the bottom of the tariff the following words appear:-
Goods handled according to conditions of our acceptance not (sic) as displayed in our office copy of which will be supplied on request.
In the absence of evidence that the trade conditions sought to be relied upon by the 1st defendants were displayed in their office, we regard as untenable the argument of Mr. Oseni that the trade conditions were incorporated in the tariff by reference.
The learned trial judge found as a fact that the trade conditions were not brought to the notice of the plaintiffs before the loss of the goods and we are satisfied that this finding was fully justified by the evidence. In the circumstances, it is unnecessary for us to consider any further the arguments addressed to us that the trade conditions constituted an express contract between the parties exempting or restricting the liability of the 1st defendants.
In the result, this appeal fails on all grounds and it is hereby dismissed. The appellants will pay to the respondents the costs of the appeal fixed at 39 guineas.