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  • Asafa Foods Factory Ltd v. Alraine Nig. Ltd
  • 125
  • 2001-10-21
  • ₦ 200
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Asafa Foods Factory Ltd v. Alraine Nig. Ltd

ASAFA FOODS FACTORY LTD.

V

ALRAINE NIG. LTD.

THE EAST ASIATIC CO. LTD.

( OWNER/CHARTERES OF MV “FIONIA” )

SUPREME COURT OF NIGERIA

UTHMAN MOHAMMED, JSC ( Presided )

SYLVESTER UMARU ONU, JSC

ANTHONY IKECHUKWU IGUH, JSC

ALOYSIUS IYORGYER KATSINA-ALU, JSC

SAMSON ODEMWINGIE UWAIFO, JSC ( Read the Lead Judgment )

SC. 51/1998

FRIDAY, 3RD MAY, 2002

ACTION - Suit brought before a court - Need for a live issue as component of

AGENCY - Agent - When may incur personal liability

AGENCY - Agent - When may not be liable for his engagements or torts

AGENCY - Agent - Where contracts on behalf of a foreign principal Presumption of incurring personal liability unless contrary intention appears

AGENCY - Agents of bailee acting within the scope of their authority - Where negligent, fraudulent or dishonest - Liability of bailee therefor

APPEAL - Need for a live issue as a vital component thereof

BAILMENT - Bailee - Burden of proof thereon - How discharged

BAILMENT - Bailee - Liability of for negligence, fraud or dishonesty of his agents acting within the scope of their authority

BAILMENT - Negligence - Onus of proving absence of lies on the bailee

COURT - Evidence adduced by parties - Duty of trial court to weigh on an imaginary scale - Effect of failure of defendant to adduce any evidence at all - Weightlessness of the defendant’s side of the imaginary scale COURT - Unchallenged evidence - Duty of court to act thereon

EVIDENCE - Documents - Documents pleaded and admitted - When will be tendered in evidence - Essence of producing such documents

EVIDENCE - Evidence adduced by parties - Duty of trial court to weigh on an imaginary scale - Effect of failure of defendant to adduce any evidence at all - Weightlessness of the defendant’s side of the imaginary scale

EVIDENCE - Facts admitted - Whether need further proof

EVIDENCE - Negligence in bailment - Onus of proof of absence of - On whom lies

PLEADINGS - Documents - Documents pleaded and admitted - When will be tendered in evidence - Essence of producing such documents

PLEADINGS - Facts admitted - Whether need further proof

PLEADINGS - Statement of claim - Allegations therein - Defendant averring that he is not in a position to admit or denying same or that he will at the trial put the plaintiff to the strictest proof thereof - Whether amount to proper traverse - Duty of defendant to properly traverse allegations in statement of claim

Issue:

Whether on the preponderance of evidence, the appellant failed to establish its case against either or both defendants/respondents and or whether the respondents did not have joint custody of the goods at any time.

Facts:

Plaintiff’s consignment of 6,691 cartons of Nido Instant Milk Powder worth $249,975.75 was shipped on board the defendant’s vessel MS “Fiona” in Hamburg on 17 December, 1986.

The consignment landed at Apapa/Lagos Port of discharge and then transported to Kano between 18-20 March 1987 for delivery to the plaintiff by the 1st defendant. A short delivery of 428 cartons was discovered. Plaintiff therefore filed this action claiming damages against the 1st and 2nd defendants.

Pleadings were filed and exchanged. Defendants led no evidence but made a no case submission at the close of plaintiff’s case. The trial court awarded special damages in favour of the plaintiff for the short delivery of 428  cartons at the rate of 15% per annum from 13th March till date of judgment and 9% thereafter until actual payment.

Dissatisfied, defendants appealed to the Court of Appeal. Allowing the appeal, the Court of Appeal dismissed the plaintiff’s claim. Aggrieved, the plaintiff further appealed to the Supreme Court.